In October 2017, an employee for Hanssem, a large furniture enterprise in Korea, disclosed the fact that her boss sexually assaulted her. The employee, however, was then threatened to be sued for defamation, and her salary was docked as well because of her disclosure. As such, defamation law in Korea covers even the true facts, sometimes hindering the victims from revealing their experiences or naming the person who assaulted them. Victims even suffer from disadvantages after disclosing their painful pasts due to the existence of this law. Furthermore, victims of the #MeToo movement, a growing movement trying to raise awareness of these issues and currently in the spotlight, are finding themselves in trouble because this law is becoming an obstacle. This situation has now resulted in controversy over the abolishment of the law. The Sungkyun Times (SKT), therefore, explores the background of the law of defamation through the true facts issue, the controversies the law is creating, and the desirable future of this law.
Defamation through True Facts and Social Atmosphere
What Is “Defamation”?
The law of defamation is aimed at punishing a person who defames another, or others, in public. Defamation means to reveal specific details and information about a specific target in public that could cause damage to that target’s dignity or social reputation. In Korea, there are three legal conditions for defamation: defamation through false statement, slander based on true facts, and cyber defamation. These conditions are written in Article 307 of the Criminal Act and Article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. There are three main points that should be considered here. First, when a person makes a false statement, a more severe punishment will be given than to someone making a true statement. The degree of punishment depends on the extent of the truth revealed. Second, cyber defamation, also includes the case of criticizing others, so a person can be punished more heavily when accused of this law. Finally, there is an exception in Article 310 of the Criminal Act, which states that the government will not punish a person for disclosing the defaming information, if it is in the interest of the public. In consideration to these three conditions, people are now starting to insist that the law of defamation through true facts should be abolished.
Background of the Current Issue
There has been a sequence of events which has raised these issues in Korea, from the disclosure of Prosecutor Seo Ji-hyeon on January 29th, to the #MeToo movement, where sexually assaulted victims have been disclosing their suffering through Social Network Services (SNS). Due to the #MeToo movement spreading widely in Korea, several sexual assault cases in diverse fields have now been revealed. The situation, however, is not bright. Victims are afraid of being revenged in social situations like being accused of defamation and mistreated in their work places. This fear makes them hesitate to disclose or denounce the facts anonymously. Prosecutor Seo Ji-hyeon also mentioned that she geared herself up for the charges of defamation after her disclosure. Through this situation, there has been an increase in the number of people advocating the abolition of defamation through true facts.
Maintaining VS. Abolishing “Defamation Based on True Facts”
The Reasons for Maintenance
1. Personal Rights and Privacy
Article 17 of the Constitution of the Republic of Korea puts importance on the fact that a person’s personal rights and privacy should be protected. If the law of defamation based on true facts was abolished, then when someone’s past is disclosed by others, there would be no protection from the law and it would not be possible to punish the assailant. The defamation law can penalize a person who dredged up other’s past memory, and it can prevent secondary damage. The Constitutional Court ruled that Article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc was constitutional in 2016. This judgment was accepted by seven judges, with two judges opposing. The result was based on the claim of judges that “Defamation in the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc does not limit freedom of expression”.
2. Victims Who Have Received Help from This Law
There are several cases where this law has actually helped the victims. For example, in a case regarding a conflict between two people in 2014, the victim whose negative past was deliberately disclosed by the defendant suffered in his work because his reputation was damaged. It is not only in this case but also in many other cases where people have made these kinds of disclosures on the internet, so a considerable number of people were protected by this law. Sin Yong-hyeon, a member of The People’s Party proposed the ‘Cyber Defamation Protection Law’ on September 21st, 2016. This proposal stated that the punishment level of cyber defamation should be reinforced because Korea should consider the nation’s situation and people’s tendencies. Also, as there is an exception that the government will not punish defendants when they disclose the fact for the public good, it has flexibility to protect people. Some lawyers insist that the range of public interest needs to be specified or extended, but this law has critical importance and should not be abolished. There are some arguments that suggest that abolishing this law is reckless.
Reasons for Abolishment
1. Limited Freedom of Expression
There is a possibility that all expressions through disclosure could become potential targets of defamation. Pussytel, a group of Women Culture Artists in Korea, described a movement similar to #MeToo which was also started through SNS at the end of 2016, but the majority of victims were accused of defamation. This organization supported victims who were accused of defamation through crowd funding, but the process was complicated and the cost was burdensome. Actually, there is an exception in the defamation law when it is for public improvement, so there is a possibility of not being sentenced. As mentioned before, however, the trial takes a long time and demands the victims to participate in investigations and courses of a trial. The existence of this law causes victims to hesitate when considering disclosing their experiences. Also, there are several cases where blog reviewers have been accused of defamation and threatened by enterprises. In fact, if a blogger did not publicly attack a company, he or she can be acquitted. Once the blogger is charged, the progress of a trial is a heavy burden, so most of these bloggers usually just delete their postings. People who claim the fact that this law should be abolished criticize that the law prevents consumers from sharing their experiences even when they have received poor service or damaged products from a company.
2. Ambiguity in Interpreting the Law
There is an exception in the defamation law, but the criterion of public interests is ambiguous. For instance, Minerva, an anonymous netizen, criticized the exchange rate policy of the government and was charged for defamation, and No Hoe-chan was also charged for exposing a secret list containing names of corrupted officials. According to the law, it is hard to prove a victim’s purpose regarding public interest because usually the victims want to gain personal compensation from the damage. Some victims are even related to the #MeToo movement which has a target of social improvement. According to a survey conducted by the Seoul Bar Association in 2016, 50% of 1944 lawyers agreed to the abolition of this defamation law.
3. Universal Trend of Abolishing the Law
The United Nations (UN) Human Rights Committee urged Korea twice to abolish the law of defamation based on true facts in 2011 and 2015. It stated that the UN are worried about the possibility of punishment even when stating true facts, and this law could be controlled by civil laws, so this law should be decriminalized. Accordingly, Korea should submit a report about this law before November, 2019. The United States (US) abolished this law in 1964 after declaring that the law violated the constitution. Now only four states of the US keep penalties related to this law: Massachusetts, Minnesota, Montana, and New Hampshire. In other states, they usually solve these kinds of conflicts through civil suits. In Europe, Bosnia and Herzegovina abolished the law first in 2001, with England also doing so in 2010, and other nations following soon after in abolishing the law completely. Germany, France, Japan and some other nations still have the defamation law, but people can avoid punishment when the written statement is truth. Among nations of the Organization for Economic Cooperation and Development (OECD), only Korea and Turkey still maintain the law of defamation based on true facts.
Future of This Law in Korea
Since 2012, amendments which contain the abolishment of defamation based on truth were suggested more than five times. Now, people are urging the government to abolish this law through the Internet as well. They have submitted a petition on the homepage of the Blue House website, and 42,929 people have participated in it. Therefore, the government has recognized the necessity of changing the current defamation law. Regarding the social and universal situation previously mentioned, the revision or abolition of this law certainly seems to be more necessary now than ever.
Efforts in Korea and the Outlook
First, the Ministry of Gender Equality and Family, the Ministry of Justice, the Ministry of Culture, the Ministry of Health and Welfare, and the Ministry of Employment and Labor announced ‘Measures to Eradicate Sexual Harassment and Violence in the Cultural and Artistic Community and Workplace’ on March 8th. According to the measures, when the case is related to the #MeToo movement, the government will actively apply the exception law in Article 310 of the Criminal Act in the investigation process. Thus, victims will not be prosecuted according to the defamation law. Also, Yoo Seung-hui, a member of the Democratic Party of Korea, proposed an exemption law which states that when a sexually assaulted victim states the truth, the government will not apply the defamation law as well.
If the defamation law is not to be abolished, the government should at least revise it, especially the parts which are being harshly criticized. Associate Professor Kwon Sun-min from the Department of Law at Chosun University suggested a direction for how the current law should proceed in his paper. He insisted that the ambiguous standard in the possibility of propagation, whether the defendant states the truth in public or in private, should be abolished. Also, the responsibility of proving the truth and public interests should be moved from the defendant to the prosecutor. Finally, he proposed that only victims who were harmed directly should be able to make an accusation.
Assuming that the defamation law is to be abolished and there is someone who might suffer from defamation through speaking the truth, the government should prepare suitable methods to save them. A lawyer, Kim Seung-han, offered the idea of reinforcing civil liability or punishing an assailant only when the statement is made with vicious intent. Also, the law should consider the cases where someone suffers from others disclosing criminal records like small crimes or crimes for living, and when the person is harmed by others’ disclosure that might severely violate human rights. Considering these cases, the government should specify detailed conditions and add a specific law regarding punishments which cannot be easily exploited.
It is hard to say whether the law of defamation through truth will be abolished or not. The most important thing, however, is to recognize the fundamental importance of the statement. SKT hopes that in the future, people will understand the weight of their words even without this defamation law and respect others in any situation.