South Korea’s Defamation Law: A Dangerous Tool
By: Manyan Lai
The end of 2016 saw a motion to impeach South Korean President Park Geun-Hye pass, with many in her own party voting in favor of deposing her. If the Constitutional Court rules the vote to be constitutional, it will be a significant victory for the protestors who took to the streets in Seoul for over a month. Organizers have claimed that over a million people joined the protests, triggered by local media reports that tie the President to a network of both nepotism and corruption.
South Korea has a powerful protest culture and a history of responding to demonstrations with harsh repression. One of South Korea’s darkest periods was the May 1980 Gwangju Uprising, when student protestors and other civilians were put down by military force—an unofficial estimate placed the casualties as high as 2,000. Again in 2015, demonstrations against President Park were met with water cannons and tear gas. One activist was killed as a result, further fueling anti-Park sentiment.
While public debate is ongoing over what measures are appropriate for South Korean authorities to use in response to political protests, there is less public awareness about a powerful set of tools the Park administration uses to silence criticism: South Korea’s criminal defamation laws.
In South Korea, as in many other countries, defamation is a criminal charge. Criminal defamation is defined there as “damaging a person’s reputation by publicly displaying facts.” Under South Korea’s Criminal Code, convictions on charges of criminal defamation using “openly false facts” can result in up to seven years imprisonment, as well as a fine of $50 million KRW (approximately $44,577 USD).
But a public statement can also be completely true and still qualify as criminal defamation. If the court finds that the defendant had made true statements with the “intent to commit defamation” and not out of “public interest,” the defendant can still be convicted—facing up to three years in jail or a $20 million KRW fine ($17,830 USD). More importantly, the burden is on the defendant to prove to the court the vague meaning of “public interest.”
A defamation law like this one, which results in criminal penalties and does not adequately distinguish between truth and falsehood, can act as a powerful tool of repression for any government. It is for this reason that various international bodies have “called foul” on the use of criminal defamation laws. The UN Special Rapporteur on Freedom of Expression has repeatedly called for decriminalization of defamation around the world due to its use in limiting free speech.
In South Korea, defamation charges are routinely used against rival political groups and journalists who spread unflattering facts about the South Korean government. There are several high-profile examples:
- In 2013, human rights lawyers and journalists publicized evidence that the National Intelligence Service had been working for Park’s presidential campaign by disbanding a rival political party and launching a cyber campaign against her opponents. In response, the agency filed defamation lawsuits against them. While many of these cases were quickly dismissed, defamation lawsuits can often drag on for up to a year.
- In 2014, a lawsuit was levied against six staffers of the newspaper Segye Ilbo for reporting on a leaked document from the Park administration. The lawsuit against Segye Ilbo continued until 2016, when the prosecution dropped the lawsuit.
- In 2014, former Seoul bureau chief of Japan’s Sankei Shimbun, Tatsuya Kato, published an unflattering article on the President citing rumors that she was having an affair, he was indicted on defamation charges brought by the Park administration. In the end, he was acquitted, but the incident sparked a small diplomatic incident between South Korea and Japan.
While these high-profile examples may ultimately seem like victories for free expression—dropped lawsuits, quick dismissals, and acquittals—such a view ignores how the use of criminal defamation creates an atmosphere of constrained expression. The People’s Solidarity for Participatory Democracy, a prominent Korean watchdog organization, concluded in a 2015 report that government officials “do not care about the outcome of the lawsuits. The purpose of filing them is to create a chilling effect that will minimize legitimate criticism and scrutiny of the government.” If this is indeed the case, the tactic appears to be successful. According to Geoff Cain, research head of the Open Government Partnership’s Korean team, “we’ve noticed a rise in censorship and a chill from defamation cases and the National Security Law, and self-censorship in the media is flagrant.”
International groups have increasingly identified the law as a major area of concern for free expression and press freedoms in South Korea. Just last year, the United Nations Human Rights Committee published a report in which it took note of South Korea’s “increasing use of criminal defamation laws to prosecute persons who criticize government action.” Furthermore, Freedom House has condemned “the increased intimidation of political opponents” under Park since she took office, including intimidation through the use of criminal defamation.
Political events are continuing to unfold in South Korea and big questions have yet to be unanswered: Will President Park’s impeachment be successful? How will the public react if the Court allows her to remain in power? Who will be South Korea’s next leader? It seems likely that the highly public nature of the most recent protests has kept President Park from alleging defamation charges against her newest round of critics. But, while the law remains on the books, the possibility of such charges also remains.
As these questions loom over the country, there is a continuing need for South Korea’s legislature to decriminalize defamation, and to put in place legal protections from defamation charges for media groups and others who share truthful information. South Korea’s executive authorities must also commit to refrain from using South Korea’s Criminal Code as a cudgel to suppress criticism. South Korea’s protests have demonstrated the vibrancy of its democracy, and the concerns of its citizens for an accountable and transparent government. South Korea’s approach to defamation should reflect the same.
Manyan Lai is an intern with PEN America’s Free Expression Program. A recent graduate of American University’s School of International Service, she has a special interest in the field of human rights and free expression in East Asia.