HRC 10-Side Event on Freedom of Expression in ROK

11월 25th, 2010 | Posted by admin in (v) Other | 1. Documents from Minbyun

Human Rights & Freedom of Expression in the Republic of Korea                                                              

Mr. Kim Byoung-joo

Lawyer, MINBYUN-Lawyers for a Democratic Society        

1. General

   As you know, since the democratization movement of the late 1980s effectively ended military dictatorship in the Republic of Korea, the country has made great strides towards ensuring broadening and protecting human rights for all. In 2001, we established the National Human Rights Commission (NHRC), the function of which is to monitor human rights violations, not only by the State, but also by non-state actors, including discrimination on the grounds of race, colour, sex, language, religion or social origin. Although the Korean human rights defenders have thus far failed to abolish the National Security Act, they have nevertheless been successful in minimizing government abuse of the National Security Act. In sum, Koreans have enjoyed a period of sustained peace and freedom of expression. For instance, in the initial years following the Republic of Korea’s transition to democracy, police and prosecutors had never imposed criminal penalties upon participants of peaceful political demonstrations. Furthermore, there was never an instance of firing a journalist because he or she wrote an article critical of the government. Unfortunately, since the inception of Lee Myung-bak’s government in February 2008, South Korea has witnessed dramatic losses in terms of its human rights achievements of the past two decades.

   Since the establishment of the new government last year, there have been a number of demonstrations against its neo-liberal economic policies. In response, the government has used such weapons as tear gas, batons, shields, fire extinguishers and water cannons against human rights activists in order to halt demonstrations. During the May and June 2008 candlelight vigils, in which demonstrators peacefully protested the import of U.S. beef, police beat several individuals, despite a lack of provocation. Among the victims of police brutality was a journalist, who was carrying identification/press credentials, as well as NHRC inspectors, who were serving as legal observers for the candle light vigil participants. In addition, a human rights lawyer sustained a serious injury to the head by a police shield. Some physicians were also assaulted by police as they tried to provide medical care not only to human rights defenders, but also to the police. Members of YMCA, who organized the Peace Order Group to prevent clashes between human rights defenders and police, were also attacked. Ultimately, 12 staff members of Mad Cow Countermeasure Committee (which organized the candlelight vigils) were arrested, along with several dozen of demonstrators who participated in candlelight vigils. Approximately 200 peaceful demonstrators were ultimately indicted.

Now, I would like to highlight several other cases involving severe violations of our freedom of expression and freedom of the press in the Republic of Korea.

2. Minerva Case

   On January 9, 2009, a South Korean blogger known as Minerva[1] was arrested and later indicted for violating a law against dissemination of false information. A challenge on his arrest warrant was ultimately denied on January 15, and he remains in prison. From March 2008 until the time of his arrest, Minerva had gained online fame by correctly predicting the bankruptcy of Lehman Brothers, as well as certain changes in South Korean macroeconomic indicators, such as the exchange rates and stock market prices. Minerva’s popularity was partially due to his scathing criticism of the Lee Myung-bak government’s economic policies, including a serious courtship with Lehman Brothers bank, which the South Korea Development Bank was seeking to purchase. Until December 2008, Minerva’s activities were comprised of approximately 280 online entries posted on the Agora discussion site of daum.net.

In the January 2009 criminal proceeding, he was charged for posting an entry on December 29, 2008, which stated that the Korean Ministry of Strategy and Finance had issued an official order prohibiting the banks from purchasing U.S. dollars, as well as a July 30, 2008 entry, in which Minerva stated that foreign exchange dealing has come to a halt. Prosecutors have asserted these claims to be false.

   The law that prosecutors have applied to the Minerva case is Article 47 of the Framework Act on Electronic Communications, which addresses ‘dissemination of false information through Internet with intent to hurt public interest’. This law was enacted in 1983 during the time of military dictatorship under President Chun Doo-hwan[2]. Except that its application is limited to electronic communications, the law is not dissimilar from President Park’s Emergency Decree No. 1, under which many private citizens critical of the authoritarian regime were persecuted for making ‘inaccurate statements,’ according to Park’s regime.  The law had largely fallen out of use for the last 30 years, until President Lee Myung-bak took power in 2008, and prosecutors began to re-invoke the law, but only where this applies to private citizens critical of government policies. In fact, one junior high school student was prosecuted for disseminating a text message stating “Schools Declare Official Holidays” after some newspapers had reported on the possibility of such a holiday, when a massive number of secondary school students participated in demonstrations against President Lee’s decision to import U.S. beef. Three adult participants are also being prosecuted for spreading inaccurate statements regarding police conduct during the anti-import demonstrations. For this reason, many people have begun to voice doubt about the constitutionality of the law.

   Others have expressed doubt on the legality of Park’s prosecution, even assuming that the law is valid. Financial ministry officials have confirmed that in the week of January 11, they had indeed made phone calls to banks requesting them to refrain from purchasing U.S. dollars, lest the Korean won continue to de-value against the dollar. Also, it was become common knowledge that the foreign exchange dealing has since come to a virtual halt, owing to the drastic exchange rate fluctuations. Still others have raised doubt about how Minerva’s postings have harmed (or can be said to be published with the intention of harming) the public interest, even if his observations are not found to be entirely accurate. The prosecutors argue that his entries have lowered the national credit rating by telling the world that the Korean government has manipulated exchange rates. However, it is widely known that the government, through informal pleas made to foreign exchange banks, has tried to influence exchange rates, as the financial ministry officials themselves have acknowledged. Furthermore, his entries have contributed to the public interest in fair foreign exchange trade because they alerted people of exchange rate manipulation that some may have been unaware of.

   Finally, others have questioned the validity of his arrest and continued confinement, even assuming culpability under the law, because all the evidence of his culpability have been already published and therefore obtained by the prosecutors and there is no apparent danger of Park’s flight. It is speculated that in the wake of Park’s arrest, many Internet pundits have been less active, as they may fear the consequences of exercising their constitutional right to free speech.

3. Pro-Government Newspaper Advertiser Boycott Case

   On August 29, 2008, twenty four people were indicted, and two of them arrested, for posting entries on the Daum Internet café[3] encouraging boycott of those businesses places advertisements in pro-government newspapers, which have been widely criticized for the biased and misleading coverage of government policies. These Daum postings proposed that telephone calls be made to the businesses in question, in order to persuade them to stop advertising in said newspapers. The arrests followed the Korean Communication Standards Commission’s (KCSC) ‘delete’ recommendation on July 1, which asserted that these entries are considered ‘information aiding and abetting a crime’ under Article 44-7 Section 1 Item 9 of the Information Communication Network Act.

   The prosecutors initially noted that these entries constituted ‘information aiding and abetting a crime’ of interference with business operation. In the Republic of Korea and other democracies throughout the world, consumer boycotts are generally considered activities protected under freedom of speech and therefore do not constitute a crime, even if they do ultimately produce the results unfavorable to the businesses targeted by the boycotters. Therefore, the prosecutors in this case, pointing out that the defendants here boycotted the businesses in order to pressure them into boycotting the newspapers, characterized defendants’ actions as secondary boycotts, and invoked the laws in other countries (such as the U.S. and Australia) which ban secondary boycotts. However, as many have noted, these secondary boycott laws are part and parcel of anti-trust regulations applying only to businesses or labor organizations (such as unions), and therefore should not be applied to consumer boycotts. In response, the prosecutors produced a list of court cases where secondary consumer boycotts were imposed ‘civil liability’. However, even a cursory reading of these cases clearly shows that these boycotts were ‘imposed liability’, not because they were secondary, but because these boycotts involved the elements of violence, coercion, or economic motivation, a kind that secondary boycott by businesses would have. Therefore, these liability decisions could not be analogous to the instant boycotts conducted only in the form of telephone calls made to the businesses advertising on pro-government newspapers.

   During the trial, the prosecution changed their reason for indictment from that of ‘secondary boycott’ to a charge of instigating a volume of telephone calls that was disruptive to the advertisers’ operations. However, no principle of law has imposed liability on consumers for calling a business too many times, where they were calling to purchase goods and services, to complain about goods and services they have purchased, or regarding goods they intend to purchase. What is perhaps most problematic here is that the defendants in this case were not charged for making ‘disruptive’ telephone calls themselves, but for encouraging other consumers to make the telephone calls. There is no evidence that the café administrators had any independent relationship, financial or otherwise, with the consumers who made the telephone calls. Indicting the defendants for encouraging such calls is in clear contravention of the clear and present danger principle, which asserts that mere advocacy is not punishable, even where that which is advocated may be criminal.

   On January 20, the prosecutors requested sentences as high as three years in imprisonment against the defendants. On the same day, approximately 80 legal scholars submitted a petition to the court highlighting the unconstitutionality of the case against the Daum bloggers.

4. PD Diary-Agricultural Minister Case

   On June 20, 2008, the producers of a television documentary PD Diary were accused of defamation by the Minister of Agriculture, Forestry, and Fishery for producing and airing a special episode on mad cow disease and its occurrence in U.S. beef on April 30, 2008. PD Diary is a popular weekly documentary by MBC, one of the three premier broadcasting stations in the Republic of Korea. The basis for accusation was that the documentary exaggerated the susceptibility of U.S. beef to mad cow disease, thereby degrading the reputation of the agricultural minister responsible for resuming the importation of U.S. beef.

   The prosecutors accepted the accusation by the agricultural minister and announced on July 29, 2008 that the PD Diary episode includes “19 different distortions,” and summoned the producers of the episode for interrogation, although they have refused to comply.  One such ‘distortion’ cited by the prosecutors is regarding the interview footage of one mother, who in describing her daughter’s death, used the phrase ‘mad cow disease’ and another disease interchangeably. Prosecutors took issue with the Korean subtitles during this segment of the episode, where ‘mad cow disease’ was inserted in each instance that the mother in question referred to the illness. The producers of the episode explained that they have ample interview testimony and did in fact intend to suggest ‘mad cow disease’. In sum, the prosecutors’ stance is that the producers should not have corrected the mother’s mistake in order to enhance the emotional impact of the interview.

   Another alleged distortion is the documentary’s analysis of Koreans’ genetic susceptibility to ‘mad cow disease’, which concludes that Koreans are three times more susceptible to the disease than other racial groups. The prosecutors claim that the comparison omitted other relevant factors. In general, the prosecutors’ investigations reveal at most sensationalizing and editorializing of the data, although not fabrications.

   The outrage toward this incident has been twofold. First, many take issue with the agricultural minister using taxpayers’ money (i.e. government prosecutors) to protect his reputation. A second point of concern is that prosecutors have demonstrated their willingness to seek criminal punishment of journalists as a means of ensuring the protection of a government official’s reputation. Minimally, it is clear that the Republic of Korea has entered into a new repressive era, in which even a documentary on consumer products will be closely scrutinized for any statement or inference that may be interpreted as unfavorable by the government. In such legal environment, the people have little freedom to evaluate companies or goods once a government official has endorsed them.

   On December 29, 2008, the prosecutor in charge of the PD Diary case resigned. Although the reason for his resignation is not publicly known, it has been rumored that he disagreed with the leadership of the Prosecutors’ Office and has refused to indict the producers for the reason that PD Diary constitutes criticism of a government policy, and therefore cannot be punished for defamation of government officials in accordance with freedom of speech.

   No indictment has yet been filed, but the Prosecutors’ Office has maintained its intention to continue investigations, and this limbo situation has undoubtedly had a chilling effect on the Korean media.

5. Conclusion

   Although the above pages are by no means a comprehensive list of current abuses, the three cases outlined here serve to illustrate the broad and sustained violations against freedom of expression in the Republic of Korea. The present government is re-invoking the same spirit of dictatorship which Koreans united to overthrow in the democratization movement. We hope that in sharing our findings on these cases, Korean NGOs will be mobilized to consolidate their efforts, and thus better protect and expand human rights in Korea, particularly freedom of expression.

Thank you very much for listening.


[1] Real name Park Dae-sung

[2] Chun Doo-hwan gained power through a military coup in 1980 amid chaos, following the assassination of the previous dictator Park Chung-hee.

[3] A group of web pages maintained by the users of the internet portal Daum, where the café members upload and download information for other café participants

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