Is the South Korean Government Fiddling with an Idea for Prohibiting Radio Broadcasting to North Korea?

On January 22, 2021, a controversial bill (“the bill”) partially amending the Inter-Korean Exchange and Cooperation Act (“the act”) was proposed by the Ministry of Unification of South Korea.¹ The act in its original form prohibits any taking or bringing goods out of or into North Korea without prior approval.² The amendment, however, adds that “delivery and receipt of intangibles in electronic form, and transmission and reception through information and communications network, etc.” are also prohibited. The key issue here is that this newly added language can be applied to the issue of radio broadcasting, and indeed all information flow to North Korea, requiring broadcasters to obtain approval from the Minister of Unification in advance. The bill went to the floor a month after the amendment (aka, Anti-Leaflet Law) to the Development of Inter-Korean Relations Act was passed by the ruling party. If radio broadcasting to North Korea is subjected to the bill as this article has indicated, the bill can have a far greater impact in the United States than the Anti-Leaflet Law has, as most of the radio broadcasting activities to North Korea by South Korean nongovernmental organizations (NGOs) are funded by the U.S. government or U.S. citizens.

The bill explicitly violates the UN Charter, as well as the policies of the United States and democratic allies and organizations. The bill constitutes a targeted reversal of the Universal Article 19 provisions: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”³ In addition to violating the UN Charter and Article 19’s language guaranteeing the freedom of information by any means across all borders, the bill infringes the freedom of expression, the fundamental constitutional right guaranteed under Article 21 of the Constitution of the Republic of Korea.

This attempt made by the South Korean government also cuts sharply against long-standing bipartisan U.S. policy for free information flow to North Korea. The policy of the U.S. government has actively supported related activities while emphasizing the importance of information inflow to North Korea. Since the adoption of the North Korean Human Rights Reauthorization Act of 2017 (H.R. 2061) in 2018, which supports various means for information inflow, the U.S. government has tried to expand radio broadcasting to North Korea and increased support for the private organizations that conduct related activities.⁴ Considering that most of the budgets for information inflow provided by the U.S. government are executed by South Korean NGOs, it is evident that the bill will have a significant impact on the U.S. government’s North Korean policy.

The South Korean government denies that it has any intention to regulate radio broadcasts to North Korea. For instance, the newly added language in the 50-page bill simply states that it increases the predictability in various forms of interchange between the two countries.⁵ Also, during a regular briefing, the Ministry of Unification explained that it is “not considering to regulate broadcasting to North Korea whatsoever,” emphasizing that radio broadcasts are not “taking in or bringing out of intangibles in electronic form” and the bill is “to govern cases such as scanned files being sent or received over the internet or through software.”⁶ However, regardless of the language used by the ministry, it is evident that radio broadcasting to North Korea can be subject to government regulation according to the bill. Further, the bill may ban broadcasting and other information distribution to North Korea from third-party countries.⁷ If it has no intention to regulate radio broadcasts to North Korea whatsoever, a provision is needed stipulating that the bill excludes radio broadcasting.

Categorizing Radio Broadcasting: Legal Issues

The controversial clauses in the bill are “delivery and receipt of intangibles in electronic form” and “transmission and reception through information and communications network” in Article 2. When asked what “intangibles in electronic form” are, the ministry quoted the Enforcement Decree of the Foreign Trade Act, which stipulates that “those intangibles in electronic form are data, information, or similarly obtained information produced or processed by software or digital mode methods, which are further defined under the Software Industry Promotion Act.”⁸ Then, the central question remains: Do radio broadcasts count as “intangibles in electronic form” under the Enforcement Decree of the Foreign Trade Act? Article 4 of the Enforcement Decree provides further clarification. There, intangible goods in an electronic form prescribed by the Presidential Decree include: “1) software, 2) data or information which is obtained by producing or processing codes, letters, voices, sounds, images, pictures, etc. in digital mode and which is determined and publicly announced by the Minister of Trade, Industry, and Energy.” Further, included in the objects “determined and publicly announced by the Minister of Trade, Industry, and Energy” are “audio or audio materials,” among other things.⁹ Importantly, all the South Korea-made radio content is produced in digital form. As of 2014, the production process and all radio content had been fully digitized.¹⁰ Radio broadcasts are indeed information produced and processed digitally by sound and voice and they qualify as “intangibles in electronic form” as described in the bill. In short, radio content is a kind of “intangibles in electronic form” under the current laws.

The second question is whether radio content is a kind of “information transmitted and received through information and communications networks” under current laws. The answer is yes. Here, “information and communications network” means “information and communications system for collecting, processing, storing, searching, transmitting, or receiving information by using telecommunications equipment defined in subparagraph 2 of Article 2 of the Telecommunications Basic Act.”¹¹ Then, the Telecommunications Basic Act defines “telecommunications equipment” as “machinery, appliances, and lines for telecommunications and other equipment necessary for telecommunications” under Article 2(2). By “telecommunications,” it means “transmission or reception of code, text, sound, or images through wired, wireless, optical or other electromagnetic processes.”¹² Thus, radio broadcasts to North Korea that use telecommunications equipment to transmit and receive code or sound qualify as the activity clearly stipulated by the bill.

Is Radio Broadcasting an Act Conducted between South Korea and North Korea?

Another matter that requires accurate interpretation is whether radio broadcasting to North Korea is “conducted between South Korea and North Korea for purposes of sale, exchange, lease, loan for use, donation, use, etc.” under Section 1, Article 2(3) of the bill. This amendment expands the scope of the existing Article 2(3) of the act by replacing “movement of goods, etc. between South Korea and North Korea” with “an act conducted between South Korea and North Korea.” Before, the act only restricted the movement of goods. Conversely, the bill aims to regulate all acts conducted between the two Koreas. While it may be argued that radio broadcasting is not the movement of goods, the interpretation can easily be expanded to make radio broadcasting fall under “an act conducted between South Korea and North Korea” stipulated by the bill.

Another question is whether radio broadcasting to North Korea is for “purposes of sale, exchange, lease, loan for use, donation, use, etc.” A judicial interpretation of the meaning of the statute would be necessary to clearly answer this question. However, what is clear is that as the ministry clarified that viewing video files is subject to the regulation under the bill, listening to audio files and radio content is also subject to the regulation, and can also be interpreted as an act for “purposes of sale, exchange, lease, loan for use, donation, use, etc.”

Current Law vs. Proposed Amendment

How to Resolve the Suspicion

The clauses in the controversial section of the bill need to be removed to resolve the suspicion. Or, the expression of “transmission (Jeonsong, 전송) and receipt through information and communications network” in the bill could be replaced with “transfer (Songsin, 송신) and receipt using electronic transfer medium” for a clearer representation of the intention. The Ministry of Unification of South Korea has claimed the new sections in Article 2 of the bill aim to manage and prepare for “cases of trading with North Korean representatives via e-mail involving movie files or scanned copies of books, being sent or received over the internet or software,”¹³ not to manage radio broadcasts to North Korea. The key here is the specificity of the recipient. According to the Copy Right Act, “transfer is a form of transmission that provides information to the members of the public, which enables them to receive the information in the place and at the time that the individual member selects.”¹⁴ Here, the transfer includes both transmission and reception of information, as in the case of sending e-mail, while transmission only implies sending something away, as in the case of radio broadcasts. According to the Act on Information and Communications Network, electronic documents “are transferred to recipients [emphasis added] using electronic transfer medium through information and communications network.”¹⁵ The ministry’s claim may be valid, though not sound, that the clause item has been included for exchanges over e-mail. Even if it is true, the wording of the clause needs to be revised as mentioned above.

A Follow-Up Bill to the Anti-Leaflet Law

The timing of the bill should also be noted. The bill went to the floor in January 2021, immediately after North Korea passed the Law on the Elimination of Reactionary Thought and Culture (“the law”). The law “illegalizes listening to, recording, and distributing radio broadcasts from abroad, as well as the inflow or distribution of foreign videos and publications.” A connected criminal law was also revised the same month, stating “anyone who personally watches, listens to, or stores South Korean films, recordings, compilations, books, songs, etc. will be punished with up to 15 years of correctional labor, while a person who introduces and distributes related content may face the death penalty or life sentence for reform through labor.” Shortly after the North Korean regime passed this bill blocking the inflow of external information, the ruling party of South Korea bulldozed the unilateral passing of the Anti-Leaflet Law, over the opposition party’s filibuster. As such, the Moon government once again may face public criticisms for another bill that can infringe on the rights of both South Koreans and North Koreans, in addition to the Anti-Leaflet Law. The international community had also raised concerns regarding the South Korean government’s disregard for human rights in North Korea even before the passage of the Anti-Leaflet Law.¹⁶

In 2018, the South Korean government stated that “it is difficult to consider leaflet activities to North Korea as a subject of regulation.” Added explanations were: (1) the act is not an inter-Korea exchange, (2) the recipient is unspecified, and (3) the movement between the two Koreas is uncertain. This time, the government claims that radio broadcasting to North Korea is not a subject to be regulated by this amendment. To verify the truth of this claim, a judicial interpretation must be present on the scope of the phrase “delivery and receipt of intangibles in electronic form, and transmission and reception through information and communications network, etc.” As we have examined earlier, it is unmistakable that radio broadcasts will be categorized as an act restricted by this bill if the current law is applied. The government remains silent thus far on Rep. Ji Seong-Ho’s written request that radio broadcasting to North Korea should be excluded from the regulatory scope of this bill.