Earlier this year, a man in Korea was indicted for defamation and other crimes after he posted explicit images of his one-night stand online. This particular case stood out because: 1) it was a defamation case, and 2) the criminal complaint was filed by a group of flight attendants.
The man’s one-night stand, a female flight attendant for an airline in Korea, was apparently featured in the images as having sex while dressed in her company uniform. As the images circulated online, other flight attendants working for the company started to feel their own reputation was being tarnished, en masse. Soon, a group of flight attendants from the company filed a criminal complaint for defamation against the man. Trial began at the Seoul Northern District Court where the defendant was found “not guilty” in February 2013. The prosecutors appealed, but the decision was affirmed by the appellate court last month. In both instances, the publication of the images did not amount to defamation vis-à-vis the flight attendants.
“Crimes against reputation” refer to crimes that are committed by unlawfully harming another person’s social reputation. In Korea, these crimes can be perpetrated either by defaming or publicly insulting another person. Defamation crimes include “Defamation,” “Cyber Defamation,” “Defamation of Dead Person,” and “Defamation through Printed Materials.” Publicly insulting another person and thereby harming his or her social reputation constitutes the crime of “Insult.”
I. Defamation (명예훼손)
According to Article 307 of the Criminal Act (형법), the punishment for “Defamation” – via a true statement of fact – is imprisonment or imprisonment without labor for not more than two years or a fine not exceeding five million won. Meanwhile, the punishment for “Defamation” – via a false statement of fact – is imprisonment for not more than five years, suspension of qualifications for not more than ten years, or a (criminal) fine not exceeding ten million won. For these crimes, the perpetrator cannot be prosecuted against the express objection of the victim. In order to qualify as “Defamation”:
1) A person has to harm the reputation of another person
2) By publishing either a true or a false statement of fact
3) With the intent to commit “Defamation.”
In Korea, “Defamation” can be perpetrated by publishing a true statement of fact. The rationale is that even a true statement of fact is fully capable of harming another person’s reputation. For instance, a person who happens to learn his or her neighbor “has committed adultery” or “is gay” does not, ipso facto, have the right to disseminate such information freely. “Outing” someone can be justified only when the public interest is served by doing so. According to Article 310 of the Criminal Act, “Defamation” – via a true statement of fact – is not punishable when it is perpetrated solely for the public interest. In such case, the defendant bears the burden of proof. The law aims to protect a person’s reputation unless it is outweighed by the public’s need for disclosure.
A “statement of fact” is a specific claim regarding the past or present that can either be proved or disproved. An opinion is not a statement of fact. A statement of fact is “published” when it is capable of being perceived by an unspecified group of people or a multitude of people. A statement of fact communicated to a single person could nonetheless be interpreted as having been “published” if the person to whom it is communicated is likely to disseminate the information. Such information need not be new information; this crime can be perpetrated by rehashing information well-known to the public.
The intent element for “Defamation” merely requires that the perpetrator be aware of and accept the possible defamatory nature of his or her claim. Specific intent to defame is not required.
All defamation crimes, including this one, do not require for a person to be specifically named. As long as the person being alluded to is easily ascertainable, a specific name need not be explicitly mentioned.
Interestingly, defamation crimes can also be perpetrated by defaming a specified group of people collectively (e.g., Daejon prosecutors). In such case, each member of the specified group is a victim of “Defamation.” The specified group cannot, however, be too large or general (e.g., Seoulites). Alluding to an unascertainable person within a specified group will result in “Defamation” vis-à-vis every member of that specified group. (e.g., “An incumbent minister is having an affair!” = “Defamation” vis-à-vis all incumbent ministers.)
II. Cyber Defamation (사이버 명예훼손)
When the crime of “Defamation” is perpetrated through an “information and communications network (i.e., the internet),” the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (정보통신망이용촉진및정보보호등에관한법률) takes precedence. The perpetrator will face more severe punishment as a result.
According to Article 70, the punishment for “Cyber Defamation” – via a true statement of fact – is imprisonment or imprisonment without labor for not more than three years or a (criminal) fine not exceeding twenty million won. Meanwhile, the punishment for “Cyber Defamation” – via a false statement of fact – is imprisonment for not more than seven years, suspension of qualifications for not more than ten years, or a (criminal) fine not exceeding fifty million won. For these crimes, the perpetrator cannot be prosecuted against the express objection of the victim. In order to qualify as “Cyber Defamation”:
1) A person has to harm the reputation of another person
2) By publishing either a true or a false statement of fact
3) Through an information and communications network
4) With the purpose of defaming another person
5) And the intent to commit “Cyber Defamation.”
“Cyber Defamation” can be perpetrated by publishing either a true or a false statement of fact. Unlike the general crime of “Defamation,” however, this crime requires specific intent to defame. The perpetrator must specifically have intended to harm the reputation of another person.
With widespread internet access, “Cyber Defamation” has become a crime extremely easy to commit. It could be as easy as posting a comment online. Reposting comments originally made by other people could also qualify. In Korea, this crime is most often perpetrated by propagating unfounded defamatory rumors about a celebrity or public figure.
In July 2012, several internet users who were largely responsible for starting and spreading defamatory rumors about Korean-born rapper Tablo were convicted of “Cyber Defamation.” They consistently argued that – contrary to Tablo’s claims – Tablo did not actually attend Stanford University. Ultimately, the courts found the online rumors to be false and defamatory. The appellate court sentenced two of the defendants to ten months in prison, while the rest received probation. One defendant appealed the decision to the Supreme Court, but the decision was affirmed in January 2013. He, too, received probation. From 2009, a massive online group calling itself Tajinyo (타진요 short for ‘타블로에게 진실을 요구합니다’) insisted that it would have been impossible for Tablo to attend Stanford University, let alone graduate so quickly. (Tablo received his BA and MA in three and a half years.) Here is a video clip of Ass. Vice Provost Black of Stanford University Registrar being interviewed back in 2010.
III. Defamation of Dead Person (사자의 명예훼손)
According to Article 308 of the Criminal Act, the punishment for “Defamation of Dead Person” is imprisonment or imprisonment without labor for not more than two years or a (criminal) fine not exceeding five million won. For this crime, the perpetrator can be prosecuted only upon complaint. A relative or descendant may file a complaint. In order to qualify as “Defamation of Dead Person”:
1) A person has to harm the reputation of a dead person
2) By publishing a false statement of fact
3) With the intent to commit “Defamation of Dead Person.”
This crime aims to protect the social and historical evaluation of a deceased person. It is based on the rationale that a person’s reputation outlives his or her existence, and such reputation is a legal interest worthy of protection.
Unlike the general crime of “Defamation,” this crime requires the perpetrator’s statement of fact to be false. Publishing a true statement of fact will not constitute this crime. The perpetrator must be aware of his or her claim’s falsity.
In September 2012, former Commissioner of the National Police Agency Cho Hyun-oh was indicted for “Defamation of Dead Person” after he made some comments about the late former President Roh Moo-hyun at a closed-door special lecture for a group of police officers. Back in March 2010, Cho had said the following: “Why did he (former President Roh) take his own life? The day before he jumped off the cliff to kill himself, a large slush fund was found in bank accounts that were opened under borrowed names…” For these comments, Cho was sentenced to ten months in prison. He’s appealed the decision, and the case is still ongoing as of June 2013. Determining whether Cho’s claims are factually accurate is critical to this case because “Defamation of Dead Person” requires the perpetrator’s claim to be false. The defendant’s good faith belief in the truth of his or her claim is also a viable defense because this crime requires for the perpetrator to have been aware of the claim’s falsity. Here is a video clip of Cho explaining his position in a recent interview. Although he expresses regret, Cho seems to believe the claims to be true.
IV. Defamation Through Printed Materials (출판물 등에 의한 명예훼손)
According to Article 309 of the Criminal Act, the punishment for “Defamation Through Printed Materials” – via a true statement of fact – is imprisonment or imprisonment without labor for not more than three years or a (criminal) fine not exceeding seven million won. Meanwhile, the punishment for “Defamation Through Printed Materials” – via a false statement of fact – is imprisonment for not more than seven years, suspension of qualifications for not more than ten years, or a (criminal) fine not exceeding fifteen million won. For these crimes, the perpetrator cannot be prosecuted against the express objection of the victim. In order to qualify as “Defamation Through Printed Materials”:
1) A person has to commit “Defamation” under Article 307
2) By means of newspaper, magazine, radio, or other publication
3) With the purpose of defaming another person
4) And the intent to commit “Defamation Through Printed Materials.”
“Defamation Through Printed Materials” can be perpetrated by publishing either a true or a false statement of fact. Unlike the general crime of “Defamation,” however, this crime requires specific intent to defame. The perpetrator must specifically have intended to harm the reputation of another person. A statement of fact made solely for the public interest automatically negates such intent.
“Newspaper, magazine, radio” is regarded as merely an illustrative list of “printed materials.” This crime could also be perpetrated by means of other media such as television, films, or videos. “Other publication,” meanwhile, refers to securely-bound printed materials that are comparable in utility to registered printed materials. This excludes photocopies or printouts consisting of several pages, and handwritten materials.
This crime can also be perpetrated by an informant who deliberately feeds false information to an unsuspecting reporter. Such an informant must have intended to defame another person by having the false information reported to the public. Once the story is reported, the informant could face punishment under Article 309. Unless they knew the information was false, the reporter and the publisher will not face criminal liability.
V. Insult (모욕)
According to Article 311 of the Criminal Act, the punishment for “Insult” is imprisonment or imprisonment without labor for not more than one year or a (criminal) fine not exceeding two million won. For this crime, the perpetrator can be prosecuted only upon complaint. In order to qualify as “Insult”:
1) A person has to publicly insult another person
2) With the intent to commit “Insult.”
“Insult” refers to the act of expressing an abstract, derogatory evaluation that is capable of harming another person’s reputation. Specific claims do not make “insults.” An insult is made “publicly” when it is capable of being perceived by an unspecified group of people or a multitude of people. Cursing someone out in public is a classic example of this crime.
FYI: Unlike defamation crimes, the crime of insult cannot be perpetrated against a group of people. A specific person has to be targeted.
This crime also covers writing things on the web, provided that the public is able to access the writing. With no special criminal law on “Cyber Insult,” all crimes of “Insult” perpetrated through the internet are punished under the Criminal Act. Like “Cyber Defamation,” this makes “Insult” a crime extremely easy to commit. Most often, this crime is perpetrated by posting a derogatory comment or tweet about a specific person online.
Not all cases result in criminal punishment. Courts take into account the specific circumstances under which the insult was made. A person who was responding to provocation, for instance, is unlikely to face criminal liability.
In July 2010, the JoongAng Ilbo reported that lawmaker Kang Yong-suk had made sexually inappropriate remarks to a group of college students during a dinner get-together. Kang’s remarks included the following: “Would you really like to be an anchorwoman? Anchorwomen have to sleep their way up…” These remarks instantly caused an uproar among news anchors in Korea. Right away, the Korea Announcers’ Association 1) filed a criminal complaint against Kang for defamation and insult, and 2) sued Kang for damages. The court found for the defendant in the civil case. In the criminal case, however, the trial and appellate courts found Kang guilty of “Insult.” This result was somewhat perplexing as Korean courts had not traditionally recognized “Insult” as a crime capable of being perpetrated against a group of people collectively. (Note: The courts viewed Korean anchorwomen as the victims.) With nothing to lose, Kang decided to appeal the decision to the Supreme Court. He also posted a copy of the appellate court’s decision on his blog, while hinting that he should maybe file a criminal complaint against comedian Choi Hyo-jong. Choi Hyo-jong was a comedian featured in one of Korea’s top comedy shows called “Gag Concert.” Choi had recently done a segment where he pretended to tell children how to become a lawmaker in Korea. In the satirical segment, Choi played the role of a kindergarten guidance counselor and said the following (my translation):
“Kids, becoming a lawmaker is not difficult! It’s very easy! You don’t need to graduate from a prestigious university. After high school, you just need to pass the bar exam and become a judge. Becoming a judge is not difficult either. You just need to rank in the top 10% at the Judicial Training and Research Institute. After you’ve successfully become a judge, you must first become friends with the head of the ruling party, so they will endorse you to an electorate that is traditionally favorable to the party. When you run for a seat, you just need to visit the National Election Commission and bring 200 million won as deposit. It’s too easy, isn’t it? Getting elected is not difficult either. During the campaign, hang around local markets you hardly ever visit. Shake hands with the old ladies, and make sure you eat an entire bowl of rice soup you rarely eat. Campaign pledges are not difficult either. Tell the people you will build a bridge or a subway station in the area. Too difficult, you say? Don’t worry, you don’t have to actually do what you say. If you are still worried about losing the election, you should investigate your opponent to identify weaknesses. For instance, has your opponent ever engaged in real estate speculation under his wife’s name? Has your opponent paid all his/her taxes? If you still have trouble finding weaknesses, thoroughly ransack your opponent’s distant and very-distant relatives. You are bound to find at least one. Once you’ve found his/her weakness, tenaciously hang on to it like a dog, and you will have become a lawmaker…”
On November 17, 2011, Kang filed a criminal complaint against Choi for the crime of “Insult” vis-à-vis all Korean lawmakers. His goal was to expose the absurdity of the decisions which had found him guilty. But with public opinion quickly turning against him, Kang decided to drop the criminal complaint within the same month. Kang also apologized to Choi, but the whole incident had only made Choi more well-known among Koreans. In July 2012, Kang and the Korea Announcers’ Association decided to settle all disputes amicably. The Korea Announcers’ Association dropped the lawsuit, while Kang formally apologized and agreed to pay for all legal fees. Since then, Kang has successfully reinvented himself as a TV personality.
On March 27, 2014, the Supreme Court of Korea has reversed and remanded the appellate court’s decision. In essence, the Court did not see the crime of “Insult” as having been perpetrated against the anchors individually. In August 2014, Kang was ultimately acquitted of “Insult,” but found guilty of “False Accusation” (무고) and fined 15 million won. (Note: He had filed a criminal complaint against some journalists, saying they had reported falsely regarding the incident.)
The Constitutional Court of Korea recently reaffirmed the constitutionality of “Insult.” Back in 2011, professor and media critic Jin Joong-kwon was convicted of “Insult” after he publicly referred to fellow media critic Byun Hee-jae as a deutbojap (듣보잡). The derogatory term deutbojap roughly translates to a “run-of-the-mill, lower-class person who nobody’s seen or heard of before.” Prof. Jin filed a constitutional complaint arguing that Article 311 of the Criminal Act infringes on an individual’s right to freedom of expression. Out of the eight Justices deliberating, only three found Article 311 “unconstitutional.” At least six votes of “unconstitutional” or “incompatible with constitution” are needed to repeal or amend a law. Internet users in Korea should avoid online name calling altogether. It’s the quickest and easiest way to commit a crime.