Thursday, July 10, 2025
Asia Democracy Chronicles
Follow Us
No Result
View All Result
  • Features & Analysis
    • All
    • Analysis
    • Articles
    Hidden in plain sight

    Hidden in plain sight

    Unwavering rainbow warriors

    Unwavering rainbow warriors

    Beyond queerness, solidarity

    Beyond queerness, solidarity

    A risky heating up

    A risky heating up

    Lives on edge

    Lives on edge

    Stateless, twice over

    Stateless, twice over

    Laboring under a tariff threat

    Laboring under a tariff threat

    Left out by the law

    Left out by the law

    Between memory and forgetting: Keeping the spirit of Tiananmen alive

    Between memory and forgetting: Keeping the spirit of Tiananmen alive

  • Countries
    • NORTHEAST ASIA
      • China
        • Hong Kong
        • Macau
        • Tibet
      • Japan
      • Mongolia
      • North Korea
      • South Korea
      • Taiwan
    • SOUTH ASIA
      • Afghanistan
      • Bangladesh
      • India
      • Nepal
      • Pakistan
      • Sri Lanka
    • SOUTHEAST ASIA
      • Brunei
      • Cambodia
      • Indonesia
      • Laos
      • Malaysia
      • Myanmar
      • Philippines
      • Singapore
      • Thailand
      • Timor-Leste
      • Vietnam
    • GLOBAL / REGIONAL
  • Issues
    • Elections
    • Access to Education
    • Access to Health
    • Authoritarianism and Abuse of Power
    • Civil Liberties
    • Discrimination Against Covid-19 Patients and Specific Sectors
    • Gender-based Violence and Child Abuse
    • Governance
    • Labor and Migrant Workers’ Rights
    • Media Freedom – Issues
    • Movement and Migration
    • Privacy and Surveillance
    • Social Protection and Inclusion
      • Peace and Diplomacy
  • Democracy Digest
    • Democracy Digest Archive
  • Asia Through The Lens
    • Northeast Asia
    • South Asia
    • Southeast Asia
    • Regional / Global
  • Democracy Watch
  • Statements
    • Civil Society Statements
  • About
    • Pitch Us
    • Back to ADN
  • Features & Analysis
    • All
    • Analysis
    • Articles
    Hidden in plain sight

    Hidden in plain sight

    Unwavering rainbow warriors

    Unwavering rainbow warriors

    Beyond queerness, solidarity

    Beyond queerness, solidarity

    A risky heating up

    A risky heating up

    Lives on edge

    Lives on edge

    Stateless, twice over

    Stateless, twice over

    Laboring under a tariff threat

    Laboring under a tariff threat

    Left out by the law

    Left out by the law

    Between memory and forgetting: Keeping the spirit of Tiananmen alive

    Between memory and forgetting: Keeping the spirit of Tiananmen alive

  • Countries
    • NORTHEAST ASIA
      • China
        • Hong Kong
        • Macau
        • Tibet
      • Japan
      • Mongolia
      • North Korea
      • South Korea
      • Taiwan
    • SOUTH ASIA
      • Afghanistan
      • Bangladesh
      • India
      • Nepal
      • Pakistan
      • Sri Lanka
    • SOUTHEAST ASIA
      • Brunei
      • Cambodia
      • Indonesia
      • Laos
      • Malaysia
      • Myanmar
      • Philippines
      • Singapore
      • Thailand
      • Timor-Leste
      • Vietnam
    • GLOBAL / REGIONAL
  • Issues
    • Elections
    • Access to Education
    • Access to Health
    • Authoritarianism and Abuse of Power
    • Civil Liberties
    • Discrimination Against Covid-19 Patients and Specific Sectors
    • Gender-based Violence and Child Abuse
    • Governance
    • Labor and Migrant Workers’ Rights
    • Media Freedom – Issues
    • Movement and Migration
    • Privacy and Surveillance
    • Social Protection and Inclusion
      • Peace and Diplomacy
  • Democracy Digest
    • Democracy Digest Archive
  • Asia Through The Lens
    • Northeast Asia
    • South Asia
    • Southeast Asia
    • Regional / Global
  • Democracy Watch
  • Statements
    • Civil Society Statements
  • About
    • Pitch Us
    • Back to ADN
No Result
View All Result
Asia Democracy Chronicles
No Result
View All Result
Home Communications Statements

South Korea: Court Rules Data Sharing Without Notifying Subjects Unconstitutional

Asia Democracy ChroniclesbyAsia Democracy Chronicles
September 3, 2022
in Statements
Reading Time: 4 mins read
A A
0
Share on FacebookShare on Twitter
Getting your Trinity Audio player ready...

3 September 2022

ARTICLE 19 welcomes a recent decision of South Korea’s Constitutional Court in a mass surveillance case. The Court found that the Telecommunications Business Act, which permits sharing personal data from telecommunication operators without a warrant, is partly non-conforming with the South Korean Constitution. This is an important step towards providing protection of freedom of expression and privacy in the country. Unfortunately, the Constitutional Court neglected other human rights non-compliant aspects of the law. We call on the South Korean Government and the Parliament to urgently bring the Telecommunications Business Act into full compliance with international human rights standards.

Background

The case was initiated by several civil society organisations after Open Net Association, ARTICLE 19’s partner organisation based in the Republic of Korea (Korea), ran a successful ‘Ask Your Telco’ campaign uncovering the victims of mass surveillance. It challenged mass surveillance in Korea under provisions of the Telecommunications Business Act (the Act). Articles 83(3) and 83(4) of the Act permit personal data sharing from telecommunications operators to a court, prosecutor or investigative agency (including the military) without a warrant and without notifying the individuals whose data has been shared.

In December 2016, ARTICLE 19 submitted an amicus brief in the case, in which we criticised the legislation’s failure to provide meaningful protection to individuals in the exercise of their right to freedom of expression and privacy. In the brief, we addressed three key points: the law’s facilitation of mass surveillance and the resulting impact on freedom of expression and privacy; the need for the law to be amended to require a warrant in order to obtain user data; and how data transfer should be accompanied by notification to affected data subjects.

ARTICLE 19’s comments on the decision

On 21 July 2022, Korea’s Constitutional Court ruled—in line with ARTICLE 19’s recommendations—that the failure to notify data subjects of the sharing of their data was a due process violation. The Court determined that it prevents data subjects from being able to challenge actions that may restrict their rights. They held this element of the law non-conforming with the constitution and ruled that the legislature must amend the law to address this non-compliance by making user notification mandatory before the end of 2023. The ruling affirms the importance of notification and its necessity in order to protect the fundamental rights and freedoms of data subjects.

Unfortunately, the Court failed to heed the second due process violation raised by ARTICLE 19 in its amicus brief – the lack of a warrant requirement. The shareable data under the Act includes the name of users, their addresses, and phone numbers. A warrant is not required in contravention of international law, which states that the use of surveillance powers by public officials must be subject to independent oversight to safeguard against abuse. The UN Human Rights Committee has stated clearly that Article 83(3) of the Telecommunications Business Act, which allows the authorities to obtain personal data without a warrant, runs counter to fundamental principles of international human rights law.

Further, the Court overlooked ARTICLE 19’s substantive concerns regarding government surveillance under Article 83(3) and 83(4) and their infringement of international human rights standards for the freedom of expression and right to privacy pursuant to the International Covenant on Civil and Political Rights (ICCPR). ARTICLE 19 regrets this omission and reiterates the non-compliance of the Telecommunications Business Act with international law:

  • The wording of Articles 83(3) and 83(4) are overly broad and give unfettered discretion to the authorities in question to request a wide range of user data, failing to meet the ICCPR’s requirement that restrictions on freedom of expression be ‘prescribed by law.’
  • Article 83(3) allows authorities to request user data from a telecommunications operator on the grounds of ‘any threat to… the guarantee of the national security.’ While national security is one of the legitimate aims for the restriction of the right to freedom of expression listed in Article 19(3) of the ICCPR, restrictions on this basis still must be necessary, proportionate, and drafted with sufficient precision to enable individuals to regulate their behaviour.
  • Articles 83(3) and 83(4) do not require the authorities to demonstrate that their data requests comply with the principles of proportionality and necessity; they therefore violate Article 19(3) of the ICCPR.
  • The right to privacy can only be lawfully restricted under international human rights law when those restrictions meet the criteria of legality, necessity and proportionality, and the restrictions take place in the pursuit of a legitimate aim. As per the legal justifications within the previous three bullet points, Articles 83(3) and 83(4) therefore constitute an unlawful and arbitrary interference with the right to privacy as protected by Article 17 of the ICCPR.
Tags: Northeast AsiaSouth KoreaStatement
Asia Democracy Chronicles

Asia Democracy Chronicles

Next Post
Global Coalition Calls for Concrete Steps on UN Report on Human Rights Violations in Uygher Region, Urges Companies to Eliminate Supply Chain Ties to Forced Labour

Global Coalition Calls for Concrete Steps on UN Report on Human Rights Violations in Uygher Region, Urges Companies to Eliminate Supply Chain Ties to Forced Labour

Siem Reap officials and business people discuss how to best promote local products

Siem Reap officials and business people discuss how to best promote local products

Subsidized fuel hike may put RI at risk of stagflation

Subsidized fuel hike may put RI at risk of stagflation

Features and Analysis

  • All
  • Special Feature
Hidden in plain sight
Special Feature

Hidden in plain sight

byKrixia Subingsubing
June 30, 2025
0

Despite Brunei's restrictive environment for LGBTQIA+ individuals, a new report reveals queer activists are creatively contributing to social change through...

Read more
Unwavering rainbow warriors
Special Feature

Unwavering rainbow warriors

byCristina Chi
June 30, 2025
0

As queer expression is heavily policed in Malaysia, LGBTQIA+ activists in civil society work learn to carve space and build...

Read more
Beyond queerness, solidarity
Special Feature

Beyond queerness, solidarity

byCristina Chi
June 29, 2025
0

Singapore's LGBTQIA+ activists are putting skills to good use as they navigate a fraught civic space to champion other rights...

Read more
A risky heating up
Articles

A risky heating up

bySuvendrini Kakuchi
June 27, 2025
0

Japan’s longer sizzling summers pose a deadly risk to the country’s growing elderly population and disproportionately impacts the poor.

Read more

Pitch Us A Story

Have a story to tell, nuanced insights, or expert analysis to share with a regional (i.e. Asia), even global, audience? Want to weigh in on specific issues, including those disproportionately affecting specific segments of society, which run the gamut from poverty and inequality to human rights violations? We’d love to hear from you.

We run features, op-eds, analyses, among others, that probe issues around fundamental rights and civil liberties, and illuminate the challenges of governance in Asia.

Yes, I’m Interested

Follow Us

Facebook
Twitter
RSS

©  Asia Democracy Chronicles.

Web Design and Development by Neitiviti Studios.

  • Features & Analysis
  • Countries
  • Issues
  • Democracy Digest
  • Asia Through The Lens
  • Democracy Watch
  • Statements
  • About
No Result
View All Result
  • Features & Analysis
  • Countries
    • NORTHEAST ASIA
      • China
      • Japan
      • Mongolia
      • North Korea
      • South Korea
      • Taiwan
    • SOUTH ASIA
      • Afghanistan
      • Bangladesh
      • India
      • Nepal
      • Pakistan
      • Sri Lanka
    • SOUTHEAST ASIA
      • Brunei
      • Cambodia
      • Indonesia
      • Laos
      • Malaysia
      • Myanmar
      • Philippines
      • Singapore
      • Thailand
      • Timor-Leste
      • Vietnam
    • GLOBAL / REGIONAL
  • Issues
    • Elections
    • Access to Education
    • Access to Health
    • Authoritarianism and Abuse of Power
    • Civil Liberties
    • Discrimination Against Covid-19 Patients and Specific Sectors
    • Gender-based Violence and Child Abuse
    • Governance
    • Labor and Migrant Workers’ Rights
    • Media Freedom – Issues
    • Movement and Migration
    • Privacy and Surveillance
    • Social Protection and Inclusion
      • Peace and Diplomacy
  • Democracy Digest
    • Democracy Digest Archive
  • Asia Through The Lens
    • Northeast Asia
    • South Asia
    • Southeast Asia
    • Regional / Global
  • Democracy Watch
  • Statements
    • Civil Society Statements
  • About
    • Pitch Us
    • Back to ADN

© 2022 Asia Democracy Chronicles - Designed and Developed by Neitiviti Studios.

Welcome Back!

Login to your account below

Forgotten Password?

Retrieve your password

Please enter your username or email address to reset your password.

Log In