Background

On September 25, 2023, in a cabinet meeting chaired by President Yoon Suk Yeol, South Korea's Ministry of Science and ICT (MSIT), led by Minister Lee Jong Ho, unveiled a landmark initiative - the Charter on the Values and Principles of the Digital Society of Mutual Prosperity, more commonly referred to as the Digital Bill of Rights. This initiative represents a transformative step in establishing a new digital order, offering national-level principles and standards tailored for the digital age. It aims to establish a foundational framework for universal digital norms, positioning South Korea at the forefront of global digital leadership.

Tracing back to September 2022, the foundation of the Digital Bill of Rights can be linked to President Yoon's engagement with scholars and business leaders in discussions about a 'new digital order.' At the Digital Vision Forum held at New York University, the President articulated the five foundational principles of the Digital Bill of Rights in his keynote speech, known as the 'New York Plan.' Since then, the MSIT has formed a diverse panel of experts from various sectors to transform the New York Plan into a concrete framework. This group undertook extensive activities, including legal and philosophical reviews, analysis of significant digital charters and declarations from around the world, and examination of current digital challenges.

The culmination of approximately one year of work, the Digital Bill of Rights encapsulates the current government's foundational direction in digital policy. It is articulated through five primary principles and 23 supporting sub-principles. The subsequent sections will briefly explore the content of the Digital Bill of Rights, with a focus on its implications in relation to emerging technologies AI and the associated legislative and policy trends in South Korea.

Outline of the Digital Bill of Rights

The Digital Bill of Rights envisions a future where the international community and South Korea jointly foster a digital society of mutual prosperity, where digital innovation is accompanied by just and fair distribution of its benefits among all individuals. To achieve this, it is founded on five overarching principles:

• guarantee of freedom and rights in the digital environment;
• guarantee of fair access to and equitable opportunities in the digital realm;
• building a safe and trustworthy digital society;
• promotion of digital innovation based on autonomy and creativity; and
• advancement of the well-being of all humankind.

In furtherance of the five foundational principles, the Digital Bill of Rights delineates universal rights for citizens and defines the duties of the state, corporations, and individuals. These are articulated through detailed sub-principles, which are summarized as follows:

• Guarantee of Freedom and Rights in the Digital Environment: This principle affirms the rights to equitable access to digital services, including a stable network environment; freedom of expression in digital contexts, along with the responsibility to respect others' rights and public morals; protection against unjust discrimination and prejudice caused by digital technologies; rights to access and control over personal information; the right to demand non-digital alternatives in the public domain; and the right to rest from digital engagement and to work safely in digital labor environments.
• Guarantee of Fair Access to and Equitable Opportunities in the Digital Realm: This principle addresses: the creation of a fair competitive environment to resolve issues like information and technology monopolies, and algorithmic biases; protection and assurance of digital asset transactions; provision of educational opportunities to enhance digital literacy and close digital gaps; promotion of data openness and expanded access to public data; and the strengthening of social safety nets to alleviate economic and social inequalities and enable communal enjoyment of the benefits of digital innovation.
• Building a Safe and Trustworthy Digital Society: This principle involves: ensuring the ethical development and use of digital technologies; appropriate prevention and management of digital risks along with transparency of related information; protection of digital privacy; fostering a healthy digital environment and protection for victims of digital crimes; and safeguarding children and youth in the digital space.
• Promotion of Digital Innovation Based on Autonomy and Creativity: This principle supports: the assurance of freedom in digital innovation activities; the creation of a reasonable digital regulatory framework and the refinement of existing regulations; the encouragement of public-private collaboration in fostering digital innovation; the establishment of institutional mechanisms to manage, prevent, and mediate social conflicts that may emerge from digital transformation.
• Advancement of the Well-being of All Humankind: This principle asserts: the nation's duty to cooperate with the international community to realize a sustainable digital society; the expansion of international cooperation for digital development; and the obligation to collaborate in forming and enforcing universal digital norms.

Significance of the Digital Bill of Rights and related legislative trends

The Digital Bill of Rights and AI

The Digital Bill of Rights is deeply interconnected with AI development and utilization. While the principles of the Digital Bill of Rights do not always explicitly reference AI, they are inherently applicable and closely related to the development and use of AI.

For example, Principle (3) pertains to the safe utilization of AI, while Principle (4) relates to the promotion of AI development. Additionally, the rights mentioned in Principle (1), such as protection from discrimination and bias and the right to control personal information, are typically invoked in discussions on AI. Item (v) of Principle 1 could broadly be interpreted as the right to demand non-AI-based decision-making in public domains. Lastly, Item (v) of Principle 2 relates to the significant societal issue of how the value generated by AI should be distributed socially. Regarding Principle (5), the South Korean government has repeatedly declared its intent to play a leading role in establishing global AI norms, anticipating more active participation in international regulatory discussions.

AI legislation

In a bid to concretize the principles reflected in the Digital Bill of Rights, entities such as the MIST, the Ministry of Culture, Sports, and Tourism (in charge of copyright-related matters), and the National Assembly are actively producing numerous guidelines and legislative proposals. Among these, the Artificial Intelligence Industry Promotion and Trust Base Establishment Act under review in the National Assembly stands out. As a fundamental law concerning AI, this legislation aims to foster the AI industry and ensure its safety. It embodies the principle of 'permission first, subsequent regulation' while classifying AI used in critical areas related to human life and safety as 'high-risk,' requiring prior notification and implementation of reliability measures.

However, the bill does not cover all aspects of the Digital Bill of Rights and has been criticized for seemingly prioritizing AI industry development over the protection of citizens' rights and safe AI use. Considering the recent approval of the AI Act by the EU Parliament and the Biden administration's Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, the need for stronger AI regulation is becoming more prominent, suggesting the content of AI legislation in South Korea may require further observation.

Regulation from a personal information perspective

Regarding the regulation of AI to protect personal rights, the activities of the Personal Information Protection Commission (PIPC) are noteworthy. Similar to the spirit of the AI industry legislation, efforts are being made to harmonize the promotion of the AI industry with the protection of individual rights.

A recent amendment to the Personal Information Protection Act of South Korea (PIPA) introduced 'rights concerning fully automated decision-making' (similar to Article 22 of the General Data Protection Regulation (GDPR)), which will come into effect from March 15, 2024. This allows individuals to reject decisions made by fully automated systems that significantly affect their rights or duties, except in certain cases. Data controllers who make automated decisions must meet transparency requirements.

Additionally, to encourage the use of personal information in the AI and data industries, the PIPC has introduced various policies to promote the use of pseudonymized information for research purposes and the use of pseudonymized information in combination with other data. Moreover, to eliminate regulatory uncertainties that hinder the development and utilization of AI, the PIPC issued the Policy Plan for the Safe Utilization of Personal Information in the Era of Artificial Intelligence, which provides guidelines for the interpretation and application of current PIPA in the AI environment and presented a blueprint for future regulatory system design in collaboration with the government and private sector. Accordingly, the PIPC has recently established the AI Privacy Team, launched the AI Privacy Public-Private Policy Council, and is piloting the Pre-adequacy Assessment System, which allows businesses that plan to develop and use new services and technologies such as AI to consult with the PIPC on legal interpretation in advance to help them utilize data safely.

Conclusion

In this article, we have explored the background and contents of the Digital Bill of Rights and the important follow-up and related measures that have been taken in South Korea. Through the Digital Bill of Rights, the South Korean government aims to present the basic principles of international cooperation in the regulation of new digital industries such as AI, and to assert a leading role in international regulatory discussions. Domestically, it appears that the South Korean government believes that in order to realize the value of the Digital Bill of Rights, it is more important to promote a robust AI industry through self-regulation rather than strong state regulation of AI. However, as the need for control over AI is increasingly emerging around the world, and the US and Europe are also considering strengthening regulations on AI, it will be important to monitor how this stance may evolve in the future.

Kwang Bae Park Partner
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Sunghee Chae Partner
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Matt Younghoon Mok Foreign Attorney
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Lee & Ko, South Korea