[VIEWPOINT]Punitive damages in media

O. J. Simpson had his name in the Hall of Fame of American football. After his retirement, he was loved by Americans in movies and on television. But his name is better known as the murderer of his ex-wife. His trials, a criminal acquittal and a civil trial loss, are counted among the leading trials of the United States. In February 1997, the District Court of Santa Monica, California, handed down a verdict for his wife’s family, requiring him to pay $33.5 million in damages. The compensatory damages were a mere $ 8.5 million, and the remaining $25 million was in punitive damages.
The punitive damages system is a very special system which punishes intentional violators of the law from committing illegal acts again by ordering payments of damages as a punishment, and also restrains other persons in a similar situation from having such an inclination. To people who feel it somewhat insufficient to ask an infamous criminal ―like O. J. Simpson who killed his former wife and her friend but then denied the fact ― to compensate for actual losses only, punitive damages fill the gap.
The Uri Party says it will legislate an act on relief from damages caused by the media. The main content of the act is the introduction of a punitive damages system against biased or malicious media coverage. That is, this proposal seems to be based on the perception that the infamous criminal called the media cannot be educated by the existing system alone. If not, there is no reason to introduce such a system.
The reasons that this system is “very special” are as follows. First, punitive damages have developed through cases in countries with a British or American legal tradition. Therefore, among countries with continental legal traditions like our country, no one implements punitive damages. Second, while the amount of punitive damages is decided by a jury in the United States, our country does not have a jury system. Although the adoption of a jury system is being discussed in the judicial reform committee, this discussion is restricted to whether the system would be introduced for criminal trials. Third, there is a question as to whether civil trials should have a punitive character.
Let’s take another look at the O.J. Simpson case. He was found innocent in the criminal trial two years ago. Even in the United States, there are controversies over whether it was just to acquit him in the criminal trial and then order him to pay a large amount of damages by adding a punitive character to the civil trial. Fourth, it is questionable whether it is appropriate to give all the damages to individual victims, not to the country, when the damages have a punitive character.
Nevertheless, it is also true that many people think it befits the idea of fairness to pay suitable damages when one’s reputation is greatly defamed by false media coverage. Capitalizing on this sentiment of the people, the ruling party is arguing for the introduction of punitive damages. In fact, when the media coverage has ill intentions, corrective measures are necessary. But this problem can be sufficiently solved under the current legal system, using consolation payments. Seeing recent suits for libel, we can easily find cases that asked about 1 billion won ($870,000) in consolation payments. The compensation that President Roh Moo-hyun requested in his libel suit against Representative Kim Moon-soo of the Grand National Party and four daily news outlets in August 2003 was 3 billion won in total. Actually, decisions that order a consolation payment of about 100 million won are often made.
In this situation, arguing for the introduction of punitive damages against media coverage amounts to emphasizing the need for a lawsuit that requires about 10 billion won in damages. When the media outlets are under the circumstances of paying damages equal to the annual sales of a fair-sized company, we can hardly expect them to criticize government policy according to their convictions and dig out the irregularities of government officials. When it comes to their intentions, some media outlets would not be able to have a say for fear that their intentions would appear evil. This is the very reason that even in the United States, a paradise for punitive damages, care is taken to exclude criticism against the public activities of public figures from being eligible for punitive damages.

* The writer is a professor of law at Danguk University. Translation by the JoongAng Daily staff.

by Moon Jae-wan