Defamation law, privacy and the #MeToo Movement in Korea

Judge Juhui Cha of the Suwon District Court speaks to A/Professor Stacey Steele from Melbourne Law School about the intersection of defamation law and privacy in the Republic of Korea in light of the #MeToo movement.

SS: Judge Cha, it was a pleasure to host you at Melbourne Law School as a Visiting Research Scholar from February 2019 to December 2019.

JC: The opportunity to research and study at the Asian Law Centre, Melbourne Law School was invaluable and gave me time to reflect on my experiences as a judge over the last twelve years. 

SS: Thank you for agreeing to share your personal reflections on defamation law and privacy in light of the #MeToo movement in Korea after following Australian defamation law developments closely.

JC: Yes, it came as a surprise to me that in Australia defamation is regarded as a civil matter and a charge of criminal defamation is very rare (see Burgess). I was also surprised to learn that a person who publicises defamatory true facts is not liable for civil defamation. In Korea, a person may be criminally liable if that person defames another by publicly alleging facts under the Criminal Code of 1953. People can be charged with defamation even where they tell the truth.     

SS: I understand that criminal defamation has come to prominence due to the rise of the # MeToo Movement in Korea since 2018. Please tell us more about the content of the criminal defamation provisions in Korea.

JC: The Criminal Code states that, ‘a person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labour for not more than two years or by a fine not exceeding five million won’ (about $A6,000 as at December 2019) (article 307(1)). Moreover, ‘a person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than five years, suspension of qualifications for not more than ten years, or a fine not exceeding ten million won’ (about $A12,000) (article 307(2)). It is a defence only when the facts alleged under article 307(1) are true and made solely for the public interest. If a person defames another person by disclosing a fact to the public through an online network purposely to disparage the reputation of such person, that person may be punished more severely – up to three years or a fine of thirty million won (about $A37,000) for disclosing factual information and seven years or a fine not exceeding fifty million won (about $A62,000) for disclosing false facts (see article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection etc., 1986, ‘Information and Communication Network Act’).

SS: How many people are charged with defamation in Korea each year?

JC: According to the Korean Institute of Criminology (KIC), more than 2,000 people were charged with the crime of defamation annually since 2010. The KIC was established in 1988 as the only national criminal research institute in Korea and is operated under the Office of the Prime Minister. As you can see from Table 1, many more cases are reported to the police. The number of reported and prosecuted cases has increased dramatically since the 1990s.

Table 1: Criminal defamation cases reported and prosecuted (based on KIC statistics)

These statistics represent cases under article 307 of the Criminal Code and do not distinguish between whether the accused publicised true or false information.

SS: Are accused often detained during the investigation and trial in defamation cases?

JC: Detention is still very rare in defamation cases, but the number of people being detained increased abruptly in 2014 during the term of former President Park Geun-hye.  According to the Supreme Prosecutors’ Office, an average of 7.4 people were detained in defamation cases annually from 2009 to 2013. The number of people detained increased by 238% to an average of 17.6 people per year for the period from 2014 to 2018.

Table 2: number of people detained after a charge of defamation
(see Bumjeobunsuk 2019 [Analytical Statistics on Crime 2019], Supreme Prosecutors’ Office of Republic of Korea (Annual Report, 2019))

SS: I am interested in how these laws and trends have impacted the #MeToo Movement in Korea…

JC: Commentators argue that sexual violence perpetrators have used the defamation law as a means of thwarting allegations at an early stage (see Jiwon Son). The defence to criminal defamation relies on the defendant being able to show that the comments were made ‘solely for the public interest’. This test is difficult to establish, because the defendant may have various intentions, including public interest, revenge and private benefit. Even if they are acquitted of defamation, the defence takes time and money. According to one report, it may take three to five years to obtain a final decision from a court.

The common characteristics of the allegations disclosed as part of the #MeToo Movement in Korea are that the alleged attackers have a superior position, power or economic status than those who suffered the alleged harm. The attackers use this status to perpetrate the alleged sexual violence against the victims. In Korea, the #MeToo Movement began in earnest in 2018 when a female public prosecutor alleged during an interview on a television news channel that a former Ministry of Justice official groped her at a funeral in 2010. She also alleged that when she reported the problem to her superiors, she suffered secondary damage such as unfair transfer. The alleged perpetrator was tried and convicted of a criminal charge of abuse of authority for transferring the victim to a provincial post, but that decision was overturned by the Supreme Court on 9 January 2020 (2019도11698). He could not be charged with sexual abuse because the one-year statute of limitations which applied at that time had expired. The female prosecutor stated that she was prepared to face a defamation claim after she publicly accused her former boss (Hankyung).

SS: From your personal perspective, how do you think the #MeToo Movement is affecting Korean society?

JC: I think that people are realising that if you’ve gone through something which you believe is unfair, you should reveal the truth. People are concerned that the law may prevent people from telling the truth (The Korea Herald).

SS: What are the main problems which have been identified when it comes to criminal defamation provisions in Korea?

JC: The criminal defamation provisions in Korea have been criticised for this chilling effect (see Manyan Lai), despite article 21 of Korea’s Constitution protecting freedom of speech and the press. The United Nations Human Rights Committee and the Human Rights Committee on the International Covenant on Civil and Political Rights recommended that the Government abolish the current defamation law regulating publicly alleging facts, to ensure that ‘the defence of truth is not subject to any further requirements’.

The Korean Government has also been accused of using defamation law to silence its critics.

SS: Do you think that the law will be abolished?

JC: I’m not sure. It’s complicated. A constitutional lawsuit was brought to the Constitutional Court in 2016 by two defendants against defamation who argued that the cyber defamation criminal provision which punishes a person who commits defamation of another person by disclosing a fact to the public through an online network purposely to disparage the reputation of such person is against the constitutional guarantee of freedom of speech. At that time, the Constitutional Court found that the law is not against the Constitution.

Other people worry that there is no effective way to protect the dignity and privacy of people from offensive disclosure of defamatory facts without these provisions.

I understand that this tension has been considered in Australia too and that prior to the introduction of the national, uniform defamation laws in Australia in 2006, in some jurisdictions, not only truth but also public benefit or public interest were needed to establish a defence of justification.    

SS: Indeed, this issue has been debated at length in Australia. What do you think of those debates?

JC: I understand that in those Australian jurisdictions which required both truth and public benefit/interest, it was considered that the public interest/benefit requirement provided some indirect privacy protection (see Rolph). Similar to Korea, people were concerned that removing the public benefit/interest element would encourage the media to invade people’s privacy (see Rolph). It seems, however, that the defence of justification in Australia typically failed because proof of substantial truth was difficult – not because the defendants weren’t able to prove public interest or benefit (see Rolph). These debates may be helpful when people think about the situation in Korea.

SS: Interestingly, there are some laws in Australia which restrict publication of facts. For example, according to section 15A of the Children (Criminal Proceedings) Act 1987 (NSW), it is an offence to name a child who appears in any criminal proceedings either as a party or as a witness.

JC: We have similar provisions in legislation in Korea too.

SS: Does Korea have a tort of invasion of privacy?

JC: Korean courts recognised a tort of invasion of privacy based on our constitutional guarantee of privacy in article 17 of the Constitution. In 2013, the Supreme Court found the defendant infringed the plaintiffs’ privacy by vividly describing their romantic dates and family get-togethers and publishing a news report with a photograph without permission, but commentators have argued that the Court has applied a complicated test requiring the balancing of the protection of a person’s private secrets and legitimate public attention. Some commentators argue that the defence and standards need to be simplified and clearer regarding what kind of act constitutes a tort of invasion of privacy.

SS: Judge Cha, it has been fascinating to hear your reflections. Do you have any final observations based on your experiences in Australia?

JC: In terms of the debates in Australia, I found the comments in Uren v John Fairfax & Sons Pty Ltd (1966) by Windeyer J persuasive. He said that, ‘the law does not protect the reputation that a man has, but only the reputation that he deserves’.

This interview reflects our personal opinions. Statements do not represent the views or policies of our employers, past or present, or any other organization with which we are affiliated. We are grateful for the assistance of Ms Subin Cho, Research Assistant, Asian Law Centre, Melbourne Law School.