Back in the US, the extent to which speech can be curbed by the law is tempered by First Amendment protections. US law protects truthful statements and even false statements, when in the form of parody, hyperbole, or not with malice etc. In the case of potentially defamatory speech, the burden falls on the accusing party to prove the statement false. This, of course, is all in the name of safeguarding Constitutionally guaranteed freedom of speech, and its something entirely different from Korean law.
Essentially, in Korean law, reputational damage is the core element in a defamation claim, rather than the truth or falsity of the statement. Thus, very much unlike US law, Korean defendants in defamation suits have, typically, the burden to prove their statement is true. And even if defendants prove their statement true, truth would not be an absolute defense to liability. The US, on the other hand, places the burden on the plaintiff to prove the alleged defamatory speech was false.
Very importantly, defamation in Korea can result in both civil and criminal liability. Korea’s criminal defamation laws are punished, primarily, by the Criminal Code, Article 307, Crimes Against Reputation (Defamation). Those convicted of criminal defamation can face prison sentences of up to 7 years.
If you are a non-Korean charged with defamation under Korean law, you need to know that you are dealing with a legal regime very different than the one in your home country – seek counsel.
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Sean Hayes may be contacted at: [email protected] 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. He has, recently, been ranked as one of only two non-Korean attorneys as a Top Attorney working in Korea by AsiaLaw.
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