Minerva On Trial

By Sean Hayes

The Minerva case fascinates and troubles many foreigners residing in Korea. Many of the comments found on English language blogs, hosted by bloggers residing in Korea, run afoul of Korean statutory law.

Some bloggers have expressed to me that they fear that their comments may lead the prosecution to their front doors.

Numerous prosecutors already know the existence of these blogs and even some of the potential illegal content on these blogs, but are not willing to conduct an investigation into them unless complaints are filed.

It is likely that if compelling complaints were filed with the prosecution concerning the content of these blogs, the prosecution would, at a minimum, initiate a thorough investigation.

For the sake of the reputation of the Korean legal system, I pray that the prosecution against a foreigner for pure speech never occurs and I promise if the case does occur to take on the case with a professor/lawyer of Constitutional Law, at the Constitutional Court, pro bono.

Minerva is a typical case of selective prosecution. It seems likely that the major problem that the prosecution had with Minerva is that Minerva never revealed that he was not a professor, politician, government official, or economist for a think tank.

It seems that the prosecution believes that hiding under the cloak of anonymity may have contributed to some of his doom and gloom predictions from coming true. His notoriety and the rumors that he may be one of Korea's ``elite" may have contributed to the prosecutors' decision to indict.

Most netizens involved in this type of commentary are not investigated by the prosecution, mainly because of the lack of notoriety of the commentator and the lack of pressure on the prosecution to indict.

Korea is unique to most of the developed West when it comes to the protection of speech. Unlike in most of the developed West, these types of prosecutions are allowed under statutory law and arguably the Korean Constitution doesn't protect the right to anonymous speech and speech that may harm the economic interest of others.

This is because of a profound difference in attitude toward the value of speech, the right to privacy, and the effect of speech on the nation, than in the West. Because of these differences, the founders of the Korean Constitution chose to protect speech to a lesser degree.

For example, Article 21 (1) of the Korean Constitution notes that ``All citizens shall enjoy the freedom of speech and the press and the freedom of assembly and association."

The face of the article is similar to the First Amendment to the U.S. Constitution which states that ``Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble …"

However, the Korean Constitution limits the protection of the article by noting that ``Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics."

The Constitution, thus, in short, balances the right to free speech with the right to privacy, public mores and social ethics. This balance creates less protection for the freedom of speech than in the United States and most of the West.

Additionally, Article 36 (2) of the Korean Constitution, arguably, allows for the restriction of rights ``when necessary for national security, the maintenance of law and order, or for public welfare." This provides an additional avenue to balance away the freedom.

If Korean citizens wish to protect speech to a level equal to the developed West, I hope they will consider reconciling the face of the Constitution with the wishes of the citizens.

Sean Hayes is a New York attorney working with the Seoul office of one of Korea's leading law firms. He formerly worked as a law faculty member and for the Constitutional Court of Korea. He can be reached at the www.thekoreanlawblog.com.

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