The Constitutional Court has ruled that a clause of the entrusted election law that barred candidates running in cooperative head elections from attaching photos and videos to mobile text messages violates the Constitution.
On the 29th, the Constitutional Court delivered a decision of nonconformity to the Constitution in a constitutional complaint and constitutional review case concerning part of Article 28, main text, subparagraph 2 of the entrusted election law, by a 7-2 vote. The clause remains valid until Dec. 31 this year, and the National Assembly must revise the law by then. Otherwise, Article 28, main text, subparagraph 2 of the entrusted election law will lose effect starting Jan. 1 next year.
A, who was elected in the 2019 NongHyup cooperative head election, was fined 3 million won on charges of attaching and sending an image bearing a face, résumé, and ballot number in a text message during the campaign period. B, who was elected a fisheries cooperative head in 2023, was also brought to trial on the same charge.
Article 28, main text, subparagraph 2 of the entrusted election law allows campaigning via text messages in cooperative head elections. However, it bans sending "multimedia messages" that include voice, video calls, or videos. The reason is that multimedia messages are more expensive than regular text messages, and the ban is intended to prevent unfair campaigning arising from differences in candidates' economic power.
The Constitutional Court said the legislative purpose of ensuring election fairness is legitimate but found that a blanket restriction on multimedia messages is excessive. The court said, "With the cooperative head campaign period being 13 days, which is not long, imposing a uniform ban on campaign messaging using multimedia messages that can convey a lot of information about a candidate in a short time excessively restricts freedom of association regarding the composition of an organization's governing body and the freedom of expression of cooperative head candidates."
It also said, "The entrusted election law fully allows electioneering using information and communications networks, including text, voice, video calls, and videos," adding, "There does not appear to be a particular need to restrict campaign messaging using multimedia messages that can convey the same information."
The Constitutional Court said, "The Public Official Election Act allows campaigning using multimedia messages while limiting the number of text message transmissions to a maximum of eight," adding, "There are alternative measures in cooperative head elections as well that can reduce the possibility of unfair campaigning arising from differences in sending expense."
Justices Jeong Jeong-mi and Cho Han-chang, who dissented, said, "If campaign methods are allowed without limit in cooperative head elections that target only members residing in a region, early overheating and corruption of the election and the deepening of unequal opportunities arising from differences in candidates' economic power can occur."