“What caused this situation in South Korea is the press which did not perform their role,” said Choi Seung-ho, a producer of the Korean news outlet, NewsTapa when the massive corruption scandal involving former President Park Geun-hye broke out.

The main role of journalism is to watch those in power and prevent them from abusing their power. Producer Choi would say the press, which does not criticize those in positions of power, especially in the government, has made it easier for them to abuse their power. Then why did the press fail to level criticism against the government?

Reporters Without Borders, an international journalism group, figured out the answer to this question, mentioning, “Criminal defamation is the main cause for the media’s self-censorship by which one is able to be sentenced to seven years at most in prison.” Fundamentally, the press can enjoy freedom of the press by our constitution in which the press has to freely publish different ideas and opinions. However, since the media coverage may be defamatory in some regard when they criticize the administration, the media hesitates to condemn the government because they fear the possibility of being punished with a defamation suit.

On May 9, the new president of South Korea was elected after Park’s impeachment. Contending with the new government, the press must do their best to perform their role. The Argus has come to the conclusion that we need to know about how we should judge whether a report is regarded as defamation when there is the collision between freedom of the press and defamation. In this way, we can try to prevent the same situation like now from recurring, letting the press fulfill their obligation. A recent key example showing this clash is the Japanese newspaper Sankei’s report on the seven hours impeached President Park was missing.

Sankei’s report on Park’s unknown  whereabouts

Collecting then-chief secretary of former President Park, Kim Ki-choon’s words at the National Assembly’s planning committee on July 7, 2014, Park acknowledged the situation of the Sewol ferry disaster at 9:19 a.m. on the day of the disaster and received a written report about the facts of the accident at 10 a.m. At 5:10 p.m., only then did Park appear at the National Emergency Management Agency. Until then, she neither received any face-to-face reports nor held emergency meetings, but only received reports via telephone, fax or documents. While the national disaster occurred, the president did not officially appear for seven hours.

Concerning the uncertainty surrounding Park’s missing hours, Gato Tatsya, a former Sankei Newspaper’s Seoul Bureau Chief, published an article in August 2014 titled, “President Park missing on the day when the ferry sank… Who did she meet on the day?”

The article put forward the question of Park’s affairs for those seven hours, quoting gossip and a column of Chosun Ilbo. He proceeded in his writing, adding his own comments to gossip and a rumor quoted from Chosun Ilbo’s column, saying, “President Park stayed with a person with whom she secretly had contact with on the day of the ferry accident.” The debatable parts of his article are as below.

“According to an official in the securities industry, it [the rumor] is about President Park and a man.” (…) “Park’s ‘secret contact’ might refer to Chung [Chung Yoon-hoi]. But this story is not simple since Park is said to ‘have a close relation not with Chung but with Choi [Choi Tae-min], Chung’s father-in-law’ according to a reliable source from the political world. (…) I do not know what this [the story concerning Park] is specifically. Nonetheless, I write this article with a restless feeling from the halls and surroundings of South Korean power.”

Afterwards, some organizations including loveDokdo, accused Gato of libel against Park, after which he was questioned by the prosecution. However, a South Korean court finally ruled that Gato was not guilty.
While Sankei’s report basically has freedom of the press, is Sankei’s report really regarded as defamation? The Argus thinks that Sankei’s report cannot be considered as defamation and it should rather be considered freedom of the press. Let us look at specific details on these questions below.

Freedom of the press and defamation

First of all, we have to be aware of the meanings of freedom of the press and the crime of defamation. Check how these two concepts are explained in legal terms below.

1. Freedom of the press

Freedom of the press is a fundamental right guaranteed by the South Korean Constitution. It means freedom to express one’s thoughts or opinions. Article 21, Clause 1 of the constitution says, “Every person has freedom of the press and publication.” Clause 4 of the same article says, “The freedom of the press and publication should not injure others’ fame or right, public order, or social ethics.” In other words, the press basically has freedom of the press, but their right is secured only when they do not violate these three tenets.
The media report on Park’s missing hours is related to “others’ fame” among the above three conditions. Therefore, for the press report on the missing hours to be accepted as freedom of the press, they must be proved to not have defamed Park Geun-hye. This leads us to a discussion about what defamation is.

2. Defamation in legal terms

South Korea specifies defamation in criminal law. When a person publicly declares a fact, injuring someone’s fame, it is considered defamation (Article 307, Clause 1 of criminal law). If the declared fact is false, the suspect shall get aggravated punishment (Article 307, Clause 2 of criminal law). In addition, if the suspect had an intention to condemn others, the suspect shall receive additional punishment depending on the authenticity of the declared fact (Article 309 of criminal law).
Shown below are the requirements for defamation. (Specific explanations for the requirements are attributed to Lee Jae-sang’s book, “Particulars of Criminal Law.”)

(1) Whether making public (Article 307, Clause 1 and 2)
This requirement refers to an issue about spreading information to the majority. Defamation is established when one publicly declares a fact/falsehood, resulting in the majority’s recognition of the fact/falsehood.

(2) Declaration of fact
For defamation by a press report to be accepted as defamation in a legal sense, there must be a statement of specific facts sufficient to reduce the victim’s social apprehension.
Looking at the clauses of criminal law, the veracity of the stated facts does not affect the seriousness of the defamation case brought against someone. When the statements are true, they fall under Article 307, Clause 1, and when they are false, they fall under Article 307, Clause 2.

(3) Intention
Intention to damage someone’s fame is required for defamation to exist. For this, intention includes willful negligence. 

* Reason for precluding illegality by Article 310 of criminal law
Article 310 of criminal law deals with a special reason for precluding the illegality of defamation. It says that if you have sincere proof that the declared fact is for the public good, defamation as a crime is not established even when you damage someone’s reputation.
Thus, a report becomes free from defamation if it is in the public interest, while still subject to a libel charge.

 Freedom of the press and defamation regarding Park’s mysterious 7 hours report

We have looked into what freedom of the press and defamation are and how they are enshrined in law.
Sankei’s article on Park’s missing seven hours has “spread information to the majority” (first requirement) and has “statements of specific facts sufficient to reduce the victim’s social apprehension quoted from the rumor” (second requirement) while we do not know it also has an intention to damage Park’s fame.
Now it is time for us to discuss whether Sankei’s article could be regarded as freedom of the press or defamation. To develop this debate, we have to answer two issues: 1) Did the report on Park’s being missing for seven hours damage Park’s reputation? To the first question, the answer is “Yes.” The report meets two requirements of defamation. And 2) if it did, is it in the public utility to disclose the details? Only when it is in the public utility, it has a reason for precluding illegality by Article 310.
The Argus would like to introduce a trial of the Korean Constitutional Court, which could be a clue for the second question.

A constitution trial proposed by Jung In-su
(Lawmaker of Gangwon provincial assembly)
A lawmaker of the third Gangwon provincial assembly, Jung In-su, as a part of his council activity, delivered his letter to a staff member at the North Korean Embassy for cooperation in several businesses, including sister relations, between the provincial assembly and the North Korean Gangwon provincial council. However, there were some excessive expressions of lament in the letter about the founder of North Korea, Kim Il-sung’s death. The Kangwon Ilbo posted a total of 17 articles from April 9, 1995 to Sept. 6, saying that lawmaker Jung sent his letter of mourning on the deceased dictator’s death and he is being questioned by the police and prosecution. In regard to this, Jung filed a libel suit against the newspaper, but the court exempted the suspect, dropping the charge against him. After having gone through two appeals against the judgment, Jung submitted a constitutional petition, but the Constitutional Court rejected his request for trial, ruling as follows.
“When interpreting or applying the positive law concerning media outlets’ defamatory expressions, in a situation of adjusting two conflicting rights: freedom of the press and protection of reputation, you should consider the circumstances. In other words, we need to set limits to freedom of the press after typically considering a proportionate relationship between two opposing rights depending on their details and ways of expression, integrating points including: whether the victim defamed by the concerned expression is a public or private person, whether the expression is about public interest or pure private interest, and whether the expression contributes to forming public opinion or public debate as a fact worthy of people’s awareness as one containing publicness and sociality. We should draw a distinction between a public and a private person, and between a public and a private interest. Furthermore, as in this case, the restriction on defamatory expressions related to a public figure’s public activity should be eased.”

From the example above, the Constitutional Court mentioned that it is unlikely that a libel charge will be invoked because of a media’s coverage of defamatory expressions if it deals with an issue of public interest about a public person.
Sankei’s report on the impeached president’s seven-hour absence is no different from the one from Kangwon Ilbo. Park Geun-hye was a public official (the president) at that time, and what Sankei calls into question is what the president did during her office hours. In addition, the public interest of the report, which is the reason for precluding illegality, is also confirmed because people deserve to know about Park’s unknown whereabouts for seven hours, which is connected to the controversy over the president’s responsibility in a national catastrophic situation.
To sum up, even though the report on Park’s mysterious hours contains defamatory expressions, we cannot prove it is libel. That is because the report argues not about a ‘private person’ Park Geun-hye but President Park’s official duties; additionally, it meets the need of public interest, which is essential to be clear from libel charge according to criminal law.

The court’s decision on Sankei’s report

After the prosecution’s investigation over Gato’s libel charge, the Seoul Central District Court ruled that he was not guilty. The justice department clearly noted, “What Gato mentioned is definitely false” but ruled as follows.
“Even though its [Gato’s article] criticism of the president’s duty is based on a false rumor, we cannot say that defamation of President Park Geun-hye is directly established by this concerned news. [Gato’s article] is seen to have hurt the honor of Park as a private person.” That is, a ‘public person’ Park’s reputation was not damaged while the ‘private person’ Park was injured.
“The president’s activity on the day of the Sewol ferry disaster corresponds to an issue of public interest,” the department added. “[Sankei’s] way of using information related to a rumor is inappropriate; however, the details of the rumor themselves are relevant to the issue of public interest. Freedom of the press in reporting on this rumor should be widely recognized.”

In conclusion, the department ruled that Gato was not guilty. Why? Because his report on the rumor about Park is seen as a public person’s issue of public interest. While not being considered defamation, the report also conforms to freedom of the press.
Now, we have found the final answer to our question. Reports suspected of libel should be regarded as freedom of the press if they deal with a ‘public person’s issue of public interest.’ 

By Lee Jae-won Editor-in-Chief