Truth is no defense from libel trap
In the expatriate community, tales of foreign teachers not being paid by their hagwon, or private language institutes, are all too familiar. Some teachers even end up filing cases with regional labor offices to get their money, in what can be a long, drawn-out process.
What’s less common is for teachers to be sued for libel when they go public trying to help others avoid their fate.
But it does happen, and the teacher may suddenly find himself at risk of deportation, which can happen if a fine of more than 2 million won ($2,156) is imposed by the court. In this situation, getting the unpaid salary is hardly the priority it once was.
Joe McPherson, a 33-year-old American, claims to be one of the victims of this “absurd” situation.
In July 2006, the English teacher filed a complaint against his former hagwon, located in Anyang, south of Seoul, for what he says was failure to pay his one-month bonus and severance money. The following month, the regional labor office covering Gyeonggi Province and Incheon determined that the hagwon had to pay him around 6.3 million won. Six months later, the Suwon District Court upheld the labor office decision and ruled that McPherson was owed, with interest, about 8.1 million won.
McPherson, who now works for another hagwon and is also a part-time teacher on EBSi, the state-funded education TV channel, said he wrote online about the legal measures he took against the hagwon so that other teachers would find it easier to take action if they encountered a similar problem.
But the hagwon owner responded by filing a libel suit in April. The cyber crime division of the Anyang Police Precinct summoned McPherson for investigation and plans to bring him in again soon.
“It was not my intention to harm the hagwon because that would make it harder for them to pay my money,” McPherson said. “It was purely in the public interest. I used the name of the hagwon just to keep things honest.”
The hagwon owner, surnamed Lee, said she filed the libel suit because the teacher defamed the hagwon with a “lie.”
“I paid all the money,” she said. “Joe harmed my hagwon, describing it and me as unscrupulous. I wish the truth were that I didn’t pay the money. Then I would just pay and things will be settled. But it is not true, so I am going to all this trouble to put things right.”
She has also appealed against the court decision to pay the money owed to McPherson. According to the Suwon District Court, the appeal will be heard at the end of the year.
Andrea Mohammed, an English teacher from Canada, said the McPherson case reveals how libel suits in Korea can work against foreign teachers, whom she claims are already suffering from lack of legal protection.
“I think most teachers would say that the system really works in favor of hagwon employers,” she said. “The fact that the owner could legally file the suit shows that the system is in favor of hagwon owners.”
Mohammed said the libel law is robbing foreign teachers of virtually the only measure they have to protect themselves from unscrupulous hagwon owners.
“Sometimes maybe teachers are just bad, but other times, when you see more than one teacher complaining about the same school, you can guess that’s probably true,” she said. “So, some teachers are trying to let other teachers know about it. Generally that’s what teachers will do because there’s really nothing else for us to do.”
She also said getting legal aid here is almost impossible because it takes a lot of time and effort.
“We could go through the Korean labor office, but it takes so long, with so many language barriers, that most of us will not go through it, only because we know we are not going to be here for the long term,” she said. “They [hagwon owners] know that we are migrant workers, we will leave, so we are not going to fight so hard.”
John Sagnella, an American, is one of the hagwon teachers who balked at what he calls an “uphill battle” to reclaim his money.
He said the owner of his former hagwon, in Seoul, didn’t pay him 3 million won. He just gave up and moved to another hagwon three years ago, seeing no chance of getting the money back.
“I was afraid of filing a complaint because I am not a Korean. Koreans win, and foreigners lose, and that’s pretty much established,” Sagnella said. “And I was threatened by the guy, that he would give me a hard time and try to kick me out of the country if I filed a complaint.”
Brendon Carr, a U.S. lawyer working for the local firm Hwang Mok Park, said the Korean law on libel limits freedom of speech.
In many other countries, including the United States, truth is a defense against libel, but not in Korea.
The terms of Article 307 of the Korean Criminal Code say those who defame others by publicizing things that are true are liable to face up to 2 years in prison or a 5 million won fine. Those writing things that are not true face up to five years in prison or a 10 million won fine.
“The Korean Constitution recognizes a right to reputation, but does not recognize absolute freedom of speech,” Carr said. “Americans do not believe there should be a limit on people’s right to say things which are true, but embarrassing. [In the United States] defamation is never a crime; it’s only a civil matter. So, for Americans living in Korea, they are frequently stunned to discover that it’s a crime under Korean law.”
The Korean Criminal Code is, however, not without a clause to protect people working in the public interest.
According to Article 310, if the facts published are true and disclosed solely for the public interest, the act of publishing the information is not punishable.
McPherson said that is why he believes he will be vindicated.
“Someone may be convicted and given a nothing sentence. You could pay some 50,000 won,” Carr said of McPherson’s case, on the assumption that the teacher is speaking the truth.
“In principle, it’s in keeping with the law. But it amounts to a judge’s recognition that it would be unfair to punish somebody for reporting something that is true.”
Tae Ji-young, a former prosecutor, admitted that people tend to abuse libel suits, but said the law serves its purpose and should not be changed. “Regardless of whether they did wrong or not, many of those who file a libel suit think they were defamed,” Tae said. “So it would be wrong to rob them of the legal chance to clear their names.”
Tae, now a private lawyer, said it is up to police and prosecutors to properly handle libel suits.
“In order for the accused in a libel suit to be convicted, there should be plenty of evidence to prove the accused had the intent to defame the accuser,” she said. “So I think most of the cases involving those who published something for the public interest would be dropped if the police and the prosecution did their part in the investigation.”
Cho Kuk, a criminal law professor at Seoul National University, disagrees.
He believes there should be a change in law to protect those who are truly serving the public interest.
The professor said it may be too early in Korea to abolish the terms of Article 307, but he said legal experts see the need to apply Article 310 of the Korean Criminal Code in broader ways.
“Article 310 is only used in limited cases and many of those publishing for the public interest still face the risk of conviction for libel,” Cho said. “Many law professors and legal experts are discussing this, and I wish we could have more leeway in interpreting and applying the article to protect the public interest.”
By Moon Gwang-lip Staff Writer [email@example.com]