September 2009 International Philosophy of Law Conference, Beijing Law and Korean Culture in Digital Society - Abstract K.S.

Park Professor of Law Korea University kyungsinpark@korea.ac.kr Korea, like Japan, has been known for making sharp distinctions between public face and private face. Assuming a public face, Koreans tend to honor formality and decorum. Assuming a private face, they tend to be very informal and humble and also demanding others to be informal and humble. Differentiating the two faces, though coming dangerously close to hypocrisy, is highly valued. Often, a persons public reputation is distinguished from that persons private reputation. The author first examines seven unique laws of the country. It is the thesis of the author that the first four laws truth defamation law, insult law, false news law, and criminal defamation - represent special laws in Korea deeply reflective of the countrys unique attitudes toward dignity, honor, and free speech, one of which is the public-private face distinction. This distinction cuts across classical legal concepts to create its own category of injury the integrity of public face - and establish it as the central value classical legal concepts are distorted and warped to protect. The last three laws are the countrys internet laws - real name system, administrative censorship, and on-demand blind measures. The latter three laws are the products of peoples perception that much contents on the net are illegal and what makes them illegal are exactly the first four, substantive laws of free speech. These laws support the above thesis that classical legal concepts are affected greatly by the public-private face distinction. These three laws, not present in other media and discriminatory against the internet show that the public-private distinction is being seriously challenged and threatened by the new modes of communication on the internet where two strangers immediately start exchanging stories, songs, and pictures like two old friends. They reflect the desperation of the society in keeping the public-private face distinction. The important question is whether the public-private face distinction and the distortions on classical legal concepts emanating from that distinction is sustainable, given the threat of the internet, which comes in a mountain of extraordinary disputes. I.
1.

Seven Laws Defamation liability for truthful statements Say Not Truth Hurting Others

Criminal Code, Article 307 (Defamation), Section 1 reads: A person who derogates another persons reputation by stating facts publicly shall be subjected to imprisonment or confinement of up to 2 years or a fine of up to 5 million won. <Amended 95.12.29> Criminal Code, Article 310 (Exculpation) reads: The act under Article 307 Section 1 shall not be punished if it constitutes a truthful statement made solely for public interest.

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Korea is one of the very few liberal democratic countries where even truthful statements are vigorously imposed criminal liability if the statements are found to derogate another persons reputation, even in absence of any concern for privacy or publicity rights. The defendant can escape liability only by proving that the statements were made solely for public interest, a burden of proof difficult to sustain. Under this provision, for instance, a worker making a truthful statement about his employers non-payment of wages has been punished. The practical effect of this law has been that a private person who has encountered revealing truths about corruptions in the government or other powerful entities could not freely share them with others in fear that they may not be able to sustain the burden of proving public interest as the sole motif. The message of this law is that any speech critical of others can be punished and it has caused both vigorous censorship by the government and self-censorship by media agencies. Recently, in a suicide death of a celebrity actress, she left behind a document that reveals corruptions in the entertainment and media industry and identifies as the main culprits powerful individuals, none of whom were identified by their real names when the incident was reported by media agencies.
2.

Criminal prosecution for defamation Prosecutors as Gladiators for Powers

Criminal Code, Article 307 (Defamation) reads: Section 1. A person who derogates another persons reputation by stating facts publicly shall be subjected to imprisonment or confinement of up to 2 years or a fine of up to 5 million won. <Amended 95.12.29> Section 2. A person who derogates another persons reputation by making publicly false factual statements shall be subjected to imprisonment for up to 5 years, disqualification for up to 10 years, or a fine of up to 10 million won <Amended 95.12.29> Korea is one of the very few liberal democratic countries where private persons are vigorously subjected to criminal prosecution for defamation. Most developed countries have abolished (or engaged in the process of abolishing) criminal prosecution for defamation. due to a concern that the incumbent government or other powerful individuals influence the prosecutors to suppress their opposition or critics --- that is, using not their own resources but the taxpayers money for the pretext of defamation prosecution. It is under this law that the current regime has prosecuted several reporters and private persons who have written and distributed material criticizing government policies. Recently more than 6 television documentary producers were jailed for producing a piece on the governments beef import policies.
3.

Insult law Go to Jail for Insulting Another

Criminal Code, Article 311 (Insult) reads: A person who publicly insults another person shall be subjected to imprisonment or confinement of up to 1 year or a fine of up to 2 million won. <Amended 95.12.29> Many countries do have the law criminally punishing insult of the King or the heads of the government but the international human rights organizations have for many years asked abolition of these laws in fear that these laws are used only to suppress speech critical of the government. We believe that the general insult law of the kind preserved in Korea presents an even

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greater threat because even government officials and powerful individuals can invoke protection under this law and thereby suppress speech critical to them. Other than Germany, Japan, and Taiwan, Korea is the only country in the whole world where insulting another private person is criminally punished. In Germany, insult is processed as private prosecution not involving the awesome power of the government. In Japan, the crime is treated lightly like a civil infraction. Now, we have not seen this law being vigorously used by the Korean government for the specific purpose of suppressing criticism of the government. The reason is that insult is a crime that requires a formal accusation to be filed with the police by the insulted, and the socially established, who are the likely victims of the insult, have been deterred from filing such formal accusation in fear that such filing may only trigger negative publicity. However, the existing insult law is being used by the ruling party as a springboard for legislating a stronger cyber-insult law, which is likely to be vigorously used for suppression of dissension. The proposed law applies the enhanced punishment of up to 2 years of imprisonment and allows prosecution even when a supposed victim has not come forward. This means that the police and prosecutors can monitor the internet looking for entries insulting to others, and even before the supposed victims have reported any injury to the police and prosecutors, apply pressure on the speakers through investigations, etc. These investigations can be very well used by the police and prosecutors again to chill the criticism of the government.
4.

Dissemination of false information Say Earth Goes around the Sun and Burn on the Stake

Framework Act on Electronic Communications, Article 47 (Penalty), Section 1 reads: A person who publicly makes a false communication using electronic communications facilities for the purpose of derogating public interest shall be subjected to imprisonment or confinement of up to 5 years or a fine of 50 million won. <Amended 96.12.30> Korea is probably the only liberal-democratic country that criminally punishes dissemination of false information even if the information did not cause any specific harm or result in any illegitimate gain. The UN Human Rights Committee itself has recommended that the law against dissemination of false information be abolished at least five times back in 1990s in fear that this law is used to punish and suppress speech critical of government. The internet pundit Minerva who achieved his fame by writing profusely on and judiciously criticizing government economic policies was indicted under this law for relaying a couple of inaccurate media reports to the internet.
5.

Laws Abrogating Right to Anonymous Communications

The Act Regarding Promotion of Use of Information Communication Networks and Protection of Information, Article 44-7 (Self-identification of Bulletin Board User) reads: Section 1. Anyone falling under one of the following and installing and operating a bulletin board shall administer the methods and procedure, etc., whereby the users identify themselves, and other necessary measures specified by the Presidential Decree (hereinafter, user self-identification measures).. . .

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Korea is probably the only liberal democratic country that requires all postings on the selected internet sites to be accompanied by the posters real identification, which translates in Korea into the name and resident registration number, the unique identification number given to all Korean nationals for welfare and tax purposes. This requirement has basically exposed private individuals identity to the police and prosecutors without any constitutional protection such as warrant requirement. In other countries, the speakers identity has been considered part of private information which, as long as the speaker continues to maintain private, the government can access only upon probable cause or reasonable suspicion that the person being demanded of identification has committed or is about to commit a crime. According to the law above, Korean nationals must identify themselves before speaking in cyberspace. This forced self-identification is unprecedented and will again chill the speech critical of the government and powerful individuals. What is more, the identification information thus collected by the portals can be obtained by the police and prosecutors without a warrant under Article 54 Section 3 of the Electronic Communication Business Act.
6.

Comprehensive administrative censorship

The Act Regarding Promotion of Use of Information Communication Networks and Protection of Information, Article 44-7 (Ban on Exchange of Illegal Information) reads: Section 1. No one shall exchange through electronic communication networks any information falling under one of the following: [obscenity, defamation, stalking, material harmful to children, interference with network, data, or program, gambling, classified information, national security, any other information aimed at and aiding or abetting a crime.] Section 2. As to Items 1 thru 6 of Section 1, Korean Communications Commission may. . . restrict the exchange of that information pursuant to the review of the Korean Communication Standards Commission. . . [omitted] Korea is probably the only liberal democratic country where an administrative body conducts comprehensive censorship on the internet. Australia also has an administrative censorship body but it censors only pornographic or child-abusive material. Koreas administrative censorship body, Korea Communication Standards Commission, censors potentially an unlimited range of material, including but not limited to defamatory material and material aiding and abetting a crime. This law has allowed KCSC to censor even contents which are likely to turn out to be lawful had the speakers or the internet service providers pursued judicial review of KCSCs actions. The reality is that no internet service provider has challenged KCSCs decision in court and the person who posted contents is not guaranteed a right to challenge it This makes freedom of speech in Korea vulnerable to government suppression. KCSC, a body controlled by a majority of commissioners appointed by the ruling party and the president, uses the authority not to cull out defamatory or crime-aiding-or-abetting material but to suppress the voices critical of the government. This danger has been considered threatening and sufficiently inherent to the nature of administrative censorship that no other liberaldemocratic country allows administrative censorship of speech even if it takes place after the speech has been made.

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7.

Temporary Blind Measures Say Not What Others Dislike for 30 Days

The Act Regarding Promotion of Use of Information Communication Networks and Protection of Information, Article 44-2 (Request to Delete Information) reads: Section 1. Any one whose rights have been violated through invasion of privacy or defamation by information offered for disclosure to the general public through an information communication network may request the information communication service provider handling that information to delete or rebut the information by certifying the fact of the violations. Section 2. The information communication service provider, upon receiving the request set forth in Section 1 shall immediately delete or temporarily blind the information and immediately inform the author of the information and the applicant for deleting that information. The service provider shall inform the users of the fact of having taken the necessary measures by posting on the related bulletin board. [omitted] Section 4. In spite of the request set forth in Section 1, if the service provider finds it difficult to decide whether the rights have been violated or anticipates a dispute among the interested parties, the service provider may take a measure temporarily blocking access to the information (blinding, hereinafter) Korea is the only liberal democratic country where one can suppress for up to 30 days contents posted on the internet by others only by making a claim that the contents violate his or her rights regardless of whether the contents actually violate others rights or not. This is based on the thought that, since the internet allows fast and multitudinous distribution of information, it is prudent to suppress any information another claims to be rights-violating immediately and merely upon request. Of course, the American notice-and-take-down system starts with the same philosophy but it is not mandatory on internet service providers like the Korean 30-day blind is. Also, under the notice-and-takedown, the contents author, informed of the take-down, can immediately have the service provider repost the information. Under the Korean system, depending on the internet service providers choices, the information can be left blinded for up to 30 days despite the authors request for revival and even proof that the information does not violate anyones rights. The total result of the system is that On-line, if you want to say anything others dont like, you have to be silent for 30 days. II. Public-Private Face Distinction From the outset, public-private face distinction is apparent from the laws concerning defamation and insult. All the laws have as the requirement that the speech be made public, which is different from Anglo-American conception of defamation (and insult, if any) which does not depend on the public nature of the speech: even speech to a close circle of friends can trigger defamation liability. I will not try to show that this requirement is unique to Korean laws but just conjecture that this distinction finds a textual home well in these concepts. To be more specific, truth defamation is present in other countries but no where else presents a threat as dominating as in Korea. A symbolical event is the media treatment of a scandal where an actress committing a suicide left a note identifying some powerful individuals associated with conservative media agencies as the main culprits to the involuntary sexual servitude imposed upon her. None of the media agencies, progressive or conservative, mentioned the real names of these individuals even after the grapevines through the internet let

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almost all interested people know the names. In private settings, everyone talked of the scandal using their real names but none of the conversations in the public settings dared to mention them. It was as if reputation, the supposed goal of defamation law, did not matter but what mattered was the pride or the integrity of the individuals public face. Insult law is also reflective of the private-public face distinction. Private speech does not matter. For instance, someone insulted in the private setting cannot file a complaint. This contradicts the classical idea that insult law, originating from Germany and Japan, is supposed to protect people from emotional distress which one can suffer even in one-to-one conversation. Criminal prosecution also focuses not on whether someones reputation is actually hurt or not but how much indignity the supposed victims suffer in the public setting. For instance, it is widely acknowledged that a case of criminal prosecution of television producers for a piece denigrating U.S. beef was motivated not by any reputational injury that the official proposing to import it suffered but by the verbal attack that he suffered from. Any other interpretation will blow the concept of defamation out of recognizable bounds to ban all people from commenting on things negatively. False news law also has the public dissemination requirement. In the private settings, much false information goes unchecked even if the information spreads far and wide. It is in the public setting that ones false information is punished. One may wonder why. The motif of the prosecution is that people are misled by false information but people are misled more permanently and more seriously through private conversations. It is really the rhetorical fight that is at stake. What is conspicuous, these public-private face distinctions do not limit the scope of liability for insult, defamation, or false news but rather broaden it. Insult law is supposed to protect people from emotional distress. Defamation law is supposed to protect people from wrongful reputational injury. False news law is supposed to protect the public from the misinformation. However, as you can see above, what matters more is the integrity of the public face or pride. What is amazing, an actress whose sex video is unlawfully disseminated by her enemy is herself expected to withdraw from social discourse, not to be a burden on the society. She did not violate any of the laws in the classical sense and yet is supposed to have violated some norm. Given the public-private face distinctions, now, you can imagine the threat that the internet poses to the current legal regime. Given the scope of liability broadened by the concept of pride, a great number of previously private comments, now appearing on the internet, face liability. Now, is this a sustainable state of affairs? The problem is that, under this regime distorted by the public-private face distinction, almost all speech on internet are public but people logging on do so with private attitudes. The bulletin boards are replacing not the formal discussions but the bathroom doors where people execrate more than what they ate. It is not that the public requirement must be abolished but that we should carefully examine the public-private face distinction and whether it withstand the challenge posed by the internet and whether it should be done away to discuss the precision of the underlying laws on to the surface. The public-private face distinction has relieved the pressure of unconstitutionality on the substantive criminal laws and thereby these laws were not given a proper scathing evaluation in the Korean society, which then in effect become a watershed event for the societys communications history.

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