Posted on openweb.or.kr
It all started from a brief circular posted at a web forum for Firefox users in Korea. It was pointed out that the government’s decision to run ‘MS optimized’ websites could probably raise Constitutional law issues. While it may not always be easy to put pressure on private website operators to switch to OS-independent, browser-independent webpages, it was argued that there could be legal means to force public bodies to do so.
This sparked a wildfire, as it were. The posting has been visited more than 4,000 times in two days. Such were the accumulated, collective grievances of Linux, Mac, Opera and Firefox users in Korea. The posting can be found here: http://forums.mozilla.or.kr/viewtopic.php?t=6767.
Thus a lawsuit against the government is being prepared. We shall seek the following rulings from the court:
- that it is unlawful for a public body to operate browser-specific or OS-specific websites;
- that the government’s decision to endorse MS optimized websites and web security applications is in violation of its treaty obligation under GATT/WTO as they create trade barriers to web browsers originating in other member countries of WTO, such as Norway; and
- that, in view of the market condition and the prevalent web page designing practice in Korea, the government has a duty under Art. 3(1) of the Antitrust and Fair Trade Law and under Art. 4.1 of the Agreement on Technical Barriers to Trade (TBT) to adopt and implement appropriate measures to encourage private entities to comply with international standards in internet engineering.
Our grounds are as follows:
A public body’s decision to run IE optimized websites will effectively deny full access to public information and public service to users who do not use IE web browser. In our view, this is an unlawful discrimination and infringement upon basic rights guaranteed by the Constitution. The government’s decision to support MS optimized web engineering products (websites as well as web security applications) is also in violation of its duty to accord most-favoured-nation (MFN) treatment to all member states of GATT/WTO because it accords advantage to US products and denies similar advantage to a Norwegian product (Opera web browser).
Problems posed by private websites require a different approach. Since Korea is a signatory to TBT Agreement, the government has the duty to ensure that international trade is not impeded by technical barriers. While TBT Agreement does not impose a positive duty on the government to implement any particular technical regulation or technical standard, failure to rectify trade-restrictive market condition which had already been created by technical barriers is not unlikely to be viewed as violation of TBT Agreement. In addition, antitrust law of Korea imposes a positive duty on the government to ‘adopt and implement measures to promote competition’ if a market has long been dominated by monopolistic or oligarchic providers or procurers of goods or services. We shall argue that, in view of these statutory and treaty requirements, central and local governments have a duty to adopt and implement appropriate measures to reduce trade barriers to competing web browsers. These measures will encourage banks and other private entities to operate browser-independent and OS-independent websites.
We take the view that this is an opportune moment to bring the lawsuit and raise these issues. Courts in Korea and in EU are currently dealing with antitrust proceedings against MS. Also, in a recent landmark case, the Supreme Court of Korea held that at least some of GATT/WTO treaties have ‘direct effect’ in Korea so that parties to a lawsuit in a Korean court can invoke relevant treaty provisions in support of their claim.
The ‘beauty’ of these proceedings is that we do not have to deal with high-powered lawyers hired by MS. Since we approach this matter as a Constitutional law issue between citizens and the government, MS has no standing. Nor is our lawsuit an antitrust complaint against MS. We are merely arguing that the Minister in charge of Information Technology and Telecommunications is neglecting his duty under the relevant statutory and treaty provisions. If MS should attempt to join in as an ‘interested party’, that in itself will go to show that they have in fact been the only one who has so far benefited from ‘MS optimized’ government policies.
We believe that our efforts will not be in vain. We also believe that our approach can be used in many other countries. We believe that the internet should be for everyone, not just for paying clients of MS.