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     Aug 13, '13

Defamation and dissent in South Korea
By Taylor Washburn

Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click here if you are interested in contributing.

South Korea's economic development has been so remarkable as to overshadow the equally remarkable story of its political transformation. Just 30 years ago, Seoul was run by a latter-day man on horseback, Chun Doo-hwan, a general who seized power in a bloody coup and deployed the military against civilian dissenters. Today, South Korea is one of only two Asian states on the Economist Intelligence Unit's list "full democracies", with competitive elections and a robust civil society.

Yet while its law is essentially protective of free expression, South Korea can still be an uncongenial jurisdiction for outspoken

contrarians - and particularly those who aim their verbal barbs at members of the nation's political and corporate elite.

Criticism of South Korean speech law often begins and ends with the National Security Act, a vague statute which dates to the turbulent days after Korea's partition, and makes it illegal for citizens to "praise, encourage, disseminate or cooperate with" enemies of the state. Once a favorite tool of Seoul's military despots, the over-broad law is still used as an instrument of censorship, although its scope has gradually been curtailed.

While the National Security Act is rarely applied outside the context of language relating to North Korea, however, another species of speech regulation has enmeshed a wider swath of public discourse. Nominally designed to protect citizens from unwarranted reputational harm, statutes regulating defamation and the spreading of rumors have been wielded as a cudgel against those who embarrass politicians or pillars of "Korea, Inc".

In 2012 alone, over 13,000 South Koreans were criminally charged with defamation, and more than 3,000 were convicted, with two dozen receiving prison sentences, according to the Korea Herald. Most such cases presumably arise from personal disputes, but Amnesty International noted that during the five-year presidency of Lee Myung-bak, which ended last February, the government had "increasingly used ... defamation and other [speech] laws to harass and suppress critics". (Ironically, Lee himself was hit with a defamation lawsuit during his 2007 presidential campaign, after he claimed that the opposition party had politicized the civil service.)

Defamation laws are not illiberal per se. Indeed, nearly all jurisdictions recognize that some legal remedy ought to be available to those who have been grievously harmed by malicious falsehoods. Given the ease with which such laws can be used to sanction and chill political discourse, however, they must be drafted and interpreted narrowly if they are not to be abused by would-be censors.

In the United States, libel and slander statutes are constrained by the First Amendment, and the criminal defamation laws that still linger on some states' books are largely dead letter. (Libel and slander are merely species of defamation, the former relating to printed material and the latter to spoken statements.) The Supreme Court has carved out protections for truthful statements as well as parody, opinion and hyperbole - and in the seminal case of New York Times vs Sullivan (1964) established a heightened bar for claims brought by public figures. Even in England, whose notoriously plaintiff-friendly laws have given rise to the phenomenon of "libel tourism", criminal defamation is now a thing of the past.

South Korean law, by comparison, marries the possibility of harsh criminal penalties to a lower legal threshold. The burden of proving that a statement is true is often placed on the defendant, not the plaintiff - and in any event, the fact that a statement is true is rarely an absolute defense. The result, according to the United Nations' special rapporteur on free expression, is that "many criminal defamation suits are filed for statements that are true and are in the public interest". Although the Supreme Court of Korea has formally adopted a version of the Sullivan standard, this has done nothing to arrest a continued increase in defamation convictions.

Prosecuting truth-tellers is particularly restrictive of commentary and reporting, but even the criminalization of false statements can chill criticism of the government, as when it amounts to an indictment of bad journalism. In 2009, for example, five employees of the Korean television network MBC were charged with defaming health officials after airing an inaccurate and sensationalistic report questioning the safety of US beef, a peculiar fixation of South Korea's nationalist left. Only after the journalists had spent several years sparring with government lawyers did the courts find that their reportorial sins were not a crime.

Later that year, a well-established British writer named Michael Breen published a satirical column in the English-language Korea Times on the president and Samsung, in which he joked that the president might pardon the chairman of the corporate titan, recently nabbed for tax evasion, as a holiday gift. Incredibly, even after Lee did grant the controversial pardon, Breen found himself hit with both criminal charges and a US$1 million Samsung lawsuit.

Like the MBC journalists, Breen prevailed in court before he was punished, although he was compelled to apologize for his innocuous piece. But not every high-profile defendant has escaped prison. In late 2011, Chung Bong-ju, a minor politician and gadfly, was thrown in jail after he was convicted of defamation and spreading rumors about president Lee. Known for his appearances on the wildly-popular podcast Naneun Ggomsuda (a title derived from an insulting epithet for Lee), Chung was targeted for airing an allegation that the president was implicated in a stock scandal before his election.

In an era of conservative leadership in Seoul - which has continued under Lee's successor, President Park Geun-hye - those charged in high-profile defamation cases have often leaned to the left. But as the strange case of Cho Hyun-oh illustrates, the law can also ensnare those sympathetic with the ruling party. In February, Cho, a former chief of Korea's National Police Agency, was handed a 10-month prison sentence for his comments about a dead man, the former progressive president Roh Moo-hyun, who left office in 2008 and leapt from a cliff the following year. Cho defamed the late leader, a court found, when he claimed that that Roh's suicide was motivated by fear that secret bank accounts would come to light.

The cases surveyed here differ in their factual, legal and political particulars. Taken together, however, they suggest the ways in which laws designed to shield individuals from calumny have come to intrude upon important and contentious public debates.

The fact that South Korean courts have rejected some of the more egregious claims filed by prosecutors may be a tribute to the independence of the judiciary, but the pursuit of such cases is likely to chill democratic discourse even if many end in dismissal or acquittal. Journalists are particularly vulnerable, a fact reflected by Freedom House's decision to downgrade South Korea to "partly free" in its 2011 and 2012 reports on freedom of the press, each of which cited defamation prosecutions as a culprit.

In seeking to explain or justify the divergence between Western and Korean defamation law, some experts have pointed to cultural differences - in particular, a fear of "losing face", which ostensibly renders Koreans more sensitive to traducement. But whether or not this is the case, no society is immune from the the costs associated with prosecuting critics of the powerful. In South Korea as elsewhere, the public foots the bill.

Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click here if you are interested in contributing. Articles submitted for this section allow our readers to express their opinions and do not necessarily meet the same editorial standards of Asia Times Online's regular contributors.

Taylor Washburn is a lawyer studying Northeast Asia at the Johns Hopkins School of Advanced International Studies in Washington, DC, and was previously a visiting professor at the Korea Advanced Institute of Science and Technology.

(Copyright 2013 Taylor Washburn)

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