A Constitutional Evaluation of the Basic Act on Press of 1980
Authors:   Korean Association of International Association of Constitutional Law, MOON Jaewan 
Published: September 2023

The Basic Act on Press of 1980 is widely regarded as the most repressive law of the 5th Republic of Korea, and this is unsurprising since it was enacted by the new military government that seized power though a coup. However, upon closer examination of the Basic Press Act's detrimental impact, the assessment becomes less straightforward. The clause on registration cancellation is the key factor leading to its classification as highly repressive, as granting the government the power to cancel media organizations' registration for overly broad reasons is inherently unconstitutional. Nevertheless, apart from this provision, it becomes difficult to label the remaining aspects of the Basic Press Act as entirely repressive.
From the perspective of press freedom, the evaluation of the Basic Press Act is as follows: Firstly, the Basic Press Act makes a distinction between “freedom of expression,” which applies to individuals, and “freedom of the press,” which pertains to media entities. It is based on the theory that the state has an obligation to establish a system that grants privileges and responsibilities to mass media to safeguard press freedom. This theory was known as “the public function theory of the press” or “the institutional guarantee of free speech” at that time. Secondly, the Basic Press Act recognizes the growing influence of broadcasting as a major medium for achieving press freedom and institutionalizes the public broadcasting system. Thirdly, the Basic Press Act formally recognizes the right to know, which is a relatively new and highly commendable addition.
A significant part of the Basic Press Act's framework still exists today. The functions of the Press Arbitration Commission and the Broadcasting Commission were even strengthened in the new laws that replaced the Basic Press Act in 1987 when the authoritarian government was collapsing. This indicates that the Basic Press Act deserved positive evaluations with respect to its content. The press freedom theory adopted by the Act bears the most similarity to the Newspaper Law and Press Arbitration Law enacted during the Roh Moo-hyun administration. The Basic Press Act's pursuit of the public function theory of the press found realization through the Newspaper Law, while the Basic Press Act's provisions for addressing media damage were implemented through the Press Arbitration Law. However, due to advancements in information and communication technology, the media landscape has undergone significant changes, rendering the inheritance of the Basic Press Act by the Newspaper Law outdated. It is commendable that the Newspaper Law was amended in 2010 to guarantee freedom of the press after the Constitutional Court ruled basic clauses of the Newspaper Law unconstitutional.
The public function theory of the Basic Press Act was carried over to the Broadcasting Law. Considering the level of broadcasting and communication technology at the time of the 1987 replacement legislation, it was reasonable to incorporate the public function theory into the Broadcasting Law. However, despite technological advancements eliminating the unique characteristics of broadcasting, such as frequency limitations, it is also anachronistic that the Broadcasting Law still adheres to the public function theory. In today's media environment, where anyone can disseminate their thoughts, there should be no distinction between an individual's freedom of expression and the media's freedom of the press. It is time to bid farewell to the theoretical foundation of the Basic Press Act, the public function theory of the press.