In the United States, the alleged defamation (civil) against a person must be a false statement. The truth is a complete defense.
Owing to the First Amendment's protection on free speech (New York Times vs. Sullivan), additional requirements may also apply, such as requiring the statement to have been made maliciously (knowledge that the statement was false or reckless disregard for the truth), while the truth is an absolute defense.
However, in South Korea, people may be held civilly liable and may be criminally punished even for a true statement. The Korean criminal law, in question, may be punished under the following clause in Korea's Criminal Law and other clauses and laws.
Article 70 (Penal Provisions)This broad definition of what constitutes defamation (which includes truthful statements) extends into the cyber world. Cyber defamation, in Korea, also requires the additional element of posting something with the intent to "purposely disparage."
(1) A person who commits defamation of another person by disclosing a fact to the public through an information and communications network purposely to disparage his/her reputation shall be punished by imprisonment, with or without prison labor, for not more than three years, or by fine not exceeding 20 million won.
(2) A person who commits defamation of another person by disclosing a false fact to the public through an information and communications network purposely to disparage his/her reputation shall be punished by imprisonment with prison labor for not more than seven years, by suspension of qualification for not more than ten years, or by fine not exceeding 50 million won.
(3) The public prosecution may not prosecute the crime under paragraph (1) or (2) against the victim's will explicitly manifested.
[This Article Wholly Amended by Act No. 9119, Jun. 13, 2008]
In this way, we can see that cyber defamation laws in Korea are somewhat analogous to "stalking laws" in other countries, requiring that the alleged defamer go the extra step of actively pursuing his victims. However, this element of the crime is, typically, not difficult to establish.
We can imagine a hypothetical situation where someone pays for a service that he isn't satisfied with, then goes home and posts a (truthful) account of what happened on the internet. The action may constitute defamation in Korea. In typical cases like this, a fine is imposed. A fine for non-Koreans may lead to deportation.
What do you think? Should the truth be an absolute defense to defamation?
Please see our other posts on defamation at:
Sean Hayes may be contacted at: SeanHayes@ipglegal.com.
Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.
Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean's profile may be found at: Sean C. Hayes