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.
- Definition of Defamation in Korea
- Defamation on Trial
- Entertainment Law Cases: Censorship Prohibited
- Not So Free Speech Over the Internet in Korea
- Violation of the Right of Publicity in Korea: The Case of Badminton Player Park Ju-Bong
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.
- Korean Entrapment Law: Korean Criminal Procedure Law Basics
- Preparation for Korean Police & Prosecutor Interrogations & Witness/Defendant Questioning at Korean Courts
- Korean Fugitives on the Run: Getting more Difficult with Change of Law
- Definition of Rape in Korea Elaborated on by the Korean Supreme Court: Criminal Law Basics
- The Korean Law Blog cited by the Washington Post on the Freedom of the Press in Korea
- Director Liability Insurance in Korea: Follow the Oxy Reckitt Beckiser
- Changes to Korea’s Franchise Law May Lead to an Increased Potential for Criminal Sanctions: Franchise Law Basics
- Public Defenders in Korea: 77.6% of Defendants Satisfied with Public Defenders
- Censorship Prohibited in Korea: Entertainment Law Cases in Korea
- Confession Prior to Arrest in Korea: Korean Sentencing Law Basics