K-Censorship

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By Scott Shepherd

Last month I wrote a piece for the Korea Times in which I argued that the New Jeans song "Cookie" contains strong sexual connotations and is therefore inappropriate for minors to be singing. When I sent it to my editor, I asked if she thought there would be any legal trouble considering the sensitive nature of the topic. She told me that she thought the article seemed fine but that she'd double check.

The disclaimer at the bottom of this article is true, by the way. There are no political or ideological hoops to jump through: I really just write my opinion. The Korea Times has never asked me to follow a particular line or argue in favor or against anything, and I've always had a good working relationship with my editors. From what I can tell, their changes are usually limited to amending various words from their British (i.e. correct) spellings to the Americanized (wrong) versions.

However, in this case the editors were worried. They didn't feel my article was in itself libelous, but ADOR, the company I had written about, had released several strong statements threatening legal action against critics, meaning that my article might lead to a lawsuit. And so, for the first time in the two years that I've been writing for them, the Korea Times asked me to change my article.

While I was waiting to hear back, I took the opportunity to find out a bit more about the laws regarding defamation in Korea. I found to my shock that Korean law treats defamation not just as a civil matter but as a criminal one. Worse still is that the truth alone is not seen as a sufficient defense. A person stating a verifiable fact still faces the threat of up to three years in prison ― and if you publicly allege "false facts" (i.e. lies) you're looking at up to five years in prison, which goes up to seven whole years in prison if the "crime" is committed "by means of newspaper, magazine, radio, or other publication".

The one small mercy is that the law states that "the act shall not be punishable" if "the facts alleged […] are true and solely for the public interest".

I don't believe that my article in any of its forms constituted defamation at all, and I feel certain that my article was indeed written "solely for the public interest": I have no connections with any of the parties involved and I do believe any judge would agree. However, I'm no legal expert and it's impossible to predict the future. So if ADOR took offence at my article and things went really bad for me in court, at the very worst I might face seven years in prison. That's 2,556 days in prison. I repeat: seven years in prison ― for defamation.

I can't imagine what terrible skeletons were in the closet of whoever decided on such draconian punishments back when it was first drafted, but it's high time this was rectified. Korea's defamation law clearly needs to be reformed.

A quick look at the statute books shows how inconsistent the criminal law is: the maximum sentence for causing death by negligence is two years' imprisonment, and someone who compels a child to perform hard and dangerous labor faces a maximum of five years in prison. A journalist revealing these crimes would face a longer potential maximum sentence than the people committing the offences in the first place.

This is manifestly wrong. It's wrong in its own sake: it's against the principles of justice, fairness and a free society. And it has a terrible stifling effect on those who want to speak out; there are, alas, examples of people being accused of crimes who then use this law to attack their accusers. The rich and powerful will always benefit from this kind of repressive law simply because they can afford the financial costs involved. And even if whistle-blowers prosecuted through this law win their case, they have still had to go through the stress and financial burden of standing trial in a criminal court, all for the price of speaking out.

Of course, the wildly disproportionate punishments for defamation go a long way to explaining the editors' worries about my article. I care strongly about the topic, but I certainly don't want to receive a criminal record and put a complete end to my career ― not to mention the minor point of languishing in prison for the best part of a decade.

So in my case, I felt I had three options: I could give up the topic entirely, I could edit my article and pray that I wouldn't get sued, or I could take the piece to another publisher. After a discussion with my wife, we decided it was worth the risk and that I should make some minor changes to the article so that it could be published. I didn't make any substantive changes and I certainly didn't change my position, but I did rephrase a few sentences and add a disclaimer. I sent it back to the Korea Times, and it was indeed published.

Ultimately, I think my changes were for the better and I should have made them without the newspaper's prompting. And I'm very glad to say that so far I haven't received any sinister legal letters in the post. Some might say, therefore, that the law did no harm: I still published my views freely and I've faced no negative consequences. In this case indeed, the worst the law did was push back the publication of an article by a week. But there are plenty of far more serious instances where the law impedes natural justice and damages the strength of Korea's democracy.

Frankly, Korea still lags behind when it comes to holding powerful people to account, demonstrated nicely by the recent hullaballoo over a cartoon of President Yoon (in my view a clever piece which fully deserved its prize). To be fair to the current government though, it's only right to point out that both major parties have poor form when it comes to repression and surveillance of critics.

Of course, when a country has a very real military threat on its borders, as South Korea has, there is a strong argument to be made in favor of the government restricting some speech for the purposes of national security. Moreover, cases do exist where some limited restriction of speech seems fair: incitements to violence, for example, or false allegations leading to real harm.

But this criminal law performs no such useful function. Rather, it's an unpleasant reminder of Korea's fraught history when free speech was repressed, a throwback to the dark days before democratic reform came to this land. In the past decades, Korea has rapidly bloomed as a successful modern democracy, and it's time to shed these last anachronistic remnants of a bygone era of suppression and tyranny.

Dr. Scott Shepherd (scottshepherd@chongshin.ac.kr) is a British-American academic. He has taught in universities in the U.K. and Korea, and is currently an assistant professor of English at Chongshin University in Seoul. The views expressed in the article are the author's own and do not reflect the editorial direction of The Korea Times.