K.S. Park explicates the Korean dilemma on free speech restrictions:
In Korea, it is a crime to hurt another’s business by “overwhelming”, Criminal Code Article 314.
Consumers’ refusal to patronize a company for its advertising policies was deemed “overwhelming” for the possible mental pressure that such refusal poses on the company executives (Newspaper Boycotter’s case). Workers’ collective refusals to work have been routinely deemed “overwhelming” on employers and therefore illegal unless specifically exempted by labor law.
It is also a crime to hurt another’s feelings by words, Criminal Code Article 311.
No other narrowing requirement. Doesn’t have to be against any minority group. This Korean crime of insult is fully handled by prosecutors unlike in Germany and heavily punishable up to 1 year unlike in Japan(up to 30 days). Many words and pictures of anger and criticism against people of status are being taken down and punished for hurting their feelings, sometimes using a different crime under the same logic. (2MB18NOMA, G20 Mouse Graffiti)
Also, “true” words about another can be punished for defamation even in absence of a privacy violation, Criminal Code Article 307 Para. 1.
Many media reports on corruptions, pollutions, and violence are therefore still done anonymously, leaving the public with no opportunity to protect or inform themselves and sometimes with no opportunity to distinguish themselves from the wrongdoers. Since defamatory words are punished whether they are true or not, the stake is low on their truth or falsity and many courts ruling even on false defamation or false-defamation-type crimes often hand out guilty verdicts when the prosecutors have not proved the falsity of the allegedly defamatory statement, for the pretext that the speaker has not provided sufficient bases for those words. (Chung Bong Joo case, Noh Hwe Chan case) As a result, people are chilled from revealing evidence of corruptions.
In Korea, criminal defamation is well and alive and has resulted in 136 actual prison sentences 2005-2009. Compare to 146 for the rest of world 2005-2007 (according to Article 19).
Many of them originate from criminal complaints filed by politicians and ministers who argue that critiques of their policies defame them. Even though these cases often result in not guilty verdicts, they have the effect of chilling any similar critique of the government policies.
So, you cannot express your true feelings or opinions about others. You cannot call on other people’s dirty secrets even if they are true. You cannot even boycott any employer or company if you do it with a sufficient number of you to be a credible threat to the owner. Now, for any of these, you not only have to pay damages but may have to go to prison! So how do Koreans survive in this oppressive setting? Assuming that they are just more tolerant of government regulation, why do these laws older than 100 years suddenly become an issue 10 years past the new century?
In the past, these laws were mainly applied to public/written words leaving a private/verbal space for people to communicate rather freely. The government did not punish you for talking about a corrupt newspaper CEO implicated with sex scandals with his real name as long as you did that over drinks with your friends but if you do that in front of television camera or put that permanently on the Internet, the government did. The two-tiered approach allowed the people to let the steam off in the private space as long as their subversive thoughts did not threaten the government in the public sphere.
Public/Private Space Distinction Challenged by Internet
Now, as you may have anticipated, this public/private space distinction of course is becoming more and more difficult to sustain as the Internet is breaking down the wall between the two spaces. The Internet is only technically public space (can reach a large number of people at the same time) but people use it with all their private intentions. The electronic bulletin boards are replacing not the formal discussions in the town hall meetings but the bathroom doors where people execrate not just what they ate but also what they thought and felt. Twitter and Facebook are replacing the dinner time talks with your friends. Now, what shall the government do when people are “talking” more than ever but this time reaching many more people at the same time?
What complicates the scene even further is that all these twits remain on line and leave easy evidence for the police in case the content is wrongful in any way. Unlike other verbal communications that evaporate into thin air after being spoken, all these twits remain and floating in the cyberspace, glaring at the government and its constituents daring it to prosecute them.
Government’s Response : Diligence and More
Well, the Korean government seems to have decided to take the challenge head-on in the typical diligence that Obama often delightedly mentions in his speech: go about as if the information revolution never hit her and punish all statements online or off-line as long as such statements have the possibility of reaching the people at large, in other words, “public”. So just treat the words internet equally as any other print or public media.
What is more, the Korean government realized that it was impossible to treat online speech equally without some “enhanced” regulation uniquely applied to the Internet. Therefore:
In Korea, one cannot write online anything w/o submitting identity data except on websites of less than 100k daily visitors. Article 44-5 of the Information Communication Network Act.
Now, that identity data can be acquired from ISPs by police at anytime w/o notice to the writer w/o any warrant or court order. Article 83 Para. 3 of the Telecommunications Business Act. Even private people can force ISPs to cough up the identity data by applying to an administrative body. Article 44-6 of the Information Communication Network Act. 여기에 요약글 내용을 입력해 주세요.
Effectively, the right to anonymous communication has been abolished.
In Korea, law exempts ISPs from all liabilities for taking down content for 30 days upon an allegedly injured party’s request. But no such exemption for restoring content.
Article 44-2 of the Information Communication Network Act. ISPs have every incentive to take down the contents but no incentive to restore them. As a result, many lawful contents are taken down against writers’ wishes.
In Korea, an administrative body decides on the legality of internet contents w/o any judicial supervision &takes them down w/o notice to the author, applying a broad range of laws including defamation. Article 44-7 of the Information Communication Network Act. Article 21 of the Act Establishing the Korean Communications Commission. Many lawful contents which would have been found lawful even under the oppressive laws discussed above are taken down.
Now, Korean people are angry because they see the internet as an add-on. They are angry because they have never embraced the laws on overwhelming, defamation, insult, etc., anyway. These laws were part of the unequal space that ordinary people were shut out from unless they had prosecutor friends or judge friends, a rarity in a country where the per capita number of lawyers is lowest, as low as 1/3 or 1/4 France. The private/verbal space left to them were too small and suffocating. They had finally found space that they could efficiently communicate with one another free of the restrictions and barriers plaguing the off-line encounters. The government has come into that space with vengeance with the same swords that it was brandishing against the people in the public/formal space. Furthermore, these regulations are stamping out creativity, imagination, most importantly freedom from the space that allowed that: the internet. .
What is even more annoying to their sense of justice, there is no parallel to any of these three regulations in other media such as broadcasting, newspaper, etc. In the Korean government’s effors to apply the old law to the new media, it is going through the trouble of creating these new regulations supporting such application. In the end, to treat online speech equally, the law is discriminating against it.
Is the Internet Really Public Space?
Is this really the only way? It is quite venerable trying to apply the same old law. But look at the old law itself. There are minimum requirements of publicness anyway. Is the Internet really that public? Is it a unitary space where everyone can talk to or hear everyone else at the same time? Or is it like a multitude of small rooms loosely connected to one another whereby one talks to only the people in each room? What is more, does one actually ‘talk’ to anybody on Facebook or Twitter or simply jut down his/her thoughts which people choose to come into the room to listen to him or her by ‘following’ or ‘becoming friends’? William Charron, an American lawyer, finally conjectures that defamation will become more and more difficult to prove in Twitter as twits are deemed more opinions than facts (“Twitter: A Caveat Emptor Exception to Libel”, Berkely Journal of Entertainment and Sports Law, April 2012 http://bit.ly/L46liW ). Korean people, locked out of public space by the oppressive defamation and insult laws, and clamped down in the internet in the world’s never seen elsewhere regulations, direly need such discussion. When people in other countries are finally “dreaming” online, Koreans are blocked from dreaming because the Korean government and law does not see it as “dreaming”.