Defamation on Trial

By Sean Hayes

Appeared in the Korea Times on October 30, 2008

A renowned actress recently committed suicide after being traumatized by malicious comments posted on Internet message boards. The actress leaves behind her young children and adoring fans.

Politicians have reacted by proposing legislation that would impose a more rigorous real name registration requirement on the Internet and more heightened punishment for defamatory statements. Expansion of real name registration would assist prosecutors in obtaining the identity of those posting malicious comments and thus prosecute them under Article 309 and 311 of the Korean Criminal Act. Many have commented that these laws are needed, while others have noted that these laws should be discarded as archaic vestiges of the past.

In much of the developed West, these laws, as applied to this situation, would run afoul of their nations’ constitutions. However, in Korea because of a profound difference in attitude toward speech and the right to privacy the founders of the Korean Constitution chose to protect speech to a lesser degree. For example, Article 21(1) of the Korean Constitution notes that “All citizens shall enjoy the freedom of speech and the press and the freedom of assembly and association.”On the face of it this article is similar to the First Amendment to the U.S. Constitution which states that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble …”However, the Korean Constitution modifies this seemingly absolute protection, by noting, in Article 21(4) that “Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics.”

The Korean Constitution, thus, in short, balances the right to free speech with the right to privacy, public mores and social ethics. This balance creates less protection for the freedom of speech than in the United States. It is interesting to note that the privacy protected, in application of the right, is not only against violations by the government, but violations by private individuals. Most constitutions only protect against actions by government.

In contraposition, in America, the First Amendment has been interpreted as creating near absolute protection for the freedom of speech. Justice Benjamin Nathan Cardozo stated the reason for the near absolute protection of free speech by noting that “our history, political and legal,” recognized “freedom of thought and speech” as “the indispensable condition of nearly every other form of freedom.”

Thus, in America, criminal punishment for speech not coupled with action is nearly impossible to successfully prosecute and civil liability is available for a defamed public figure only if the plaintiff can prove that the defamatory comment is false and that the statement was made with “malice.” Malice is defined, in law, as either knowledge by the defendant that the statement was false or a reckless disregard by the defendant for the truth of the statement. Because of this high standard and that the burden of satisfying the standard is placed on the defendant, it is nearly impossible, except with the most flagrant mendacious statement, for a plaintiff to win a lawsuit.

This situation in Korea is very alarming and upsetting. However, most Americans would rather hear of these difficulties, which America also has a good deal of and which I have written about in these pages, than have an often biased government choose if speech violates “the honor or rights of other persons” or “undermine public morals or social ethics.”

However, Korea has a vastly different history and relies more on the government for solutions to difficulties.

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SeanHayes@ipglegal.com