Free expression’s erosion

There is little doubt that Korea is a consolidated democracy. But since its transition in 1987-8 - accelerating under the Lee Myung Bak and current governments - the country has experienced a worrisome decline in freedom of expression.

This is not personal opinion, rather it has been widely noted by a range of human rights organizations, including a 2011 UN Special Rapporteur report. Freedom House, a leading NGO tracking political rights and civil liberties worldwide, downgraded South Korea’s “freedom of the press” status from “free” to “partly free” in 2010 and reached a similar conclusion about Internet freedom in 2011. Reporters Without Borders, a media watchdog, ranked press freedom in Korea 42nd in the world in 2010 and 60th in 2015, barely ahead of Japan and below Argentina, Croatia and Malawi. The OpenNet Initiative, which focuses on Internet freedom, also raised red flags.

What generates these negative assessments? The culprits are several and include continued criminalization of defamation; overly strict political campaign laws; a surprising uptick in censorship of Internet content; and an anachronistic National Security Law.

Criminal defamation has a chilling effect on free speech and has become an issue of increasing international concern. Libel and slander laws subject reporters and citizens to arrest, pretrial detention, and expensive trials in which political incumbents and economic elites have distinct advantages. Defamation laws are particularly troubling when employed to protect government officials from scrutiny. Used by both the Kim Dae-jung and Roh Moo-hyun administrations, such suits have become more commonplace. Noteworthy examples include the “PD Notebook” case, in which a minister of agriculture sought to counter opposition to U.S. beef imports, the attempt to silence Shin Sang-cheol for doubts about the Cheonan inquiry and a tragic case in which a young man committed suicide after posting criticism of the four-rivers restoration project. More recent cases involve the behavior of the president and her family against Japanese journalist Tatsuya Kato and two independent Korean journalists, Kim Ou-joon and Choo Chin-woo.

South Korea’s election law imposes an array of restrictions on the time and manner of campaigning and bans civil society groups from supporting or opposing a candidate or even a political party. These restrictions had their origin under the Syngman Rhee regime in the late 1950s, but were actually copied from Japanese law. The law generally gives incumbents an advantage, because challengers are limited in their ability to campaign and pursued aggressively through legal actions if they violate the law. These abuses have occurred under all democratic administrations, but we have seen a particular increase in cases targeting so-called “black propaganda” or false statements and slander. These suffer from many of the same problems as criminal defamation and have occurred even in the context of claims by opponents that were factually true.

South Korea is one of the most wired countries in the world, but regulatory measures such as a real-name registration system and increased policing of online activities have challenged Internet freedom. Democracies generally treat the ability of users to maintain anonymity as a privacy issue; real-name registration systems are more typical in authoritarian regimes such as China. However, South Korea was one of the first countries to introduce such a system, has filtered certain classes of content and been criticized by netizens, the National Human Rights Commission and global service providers.

South Korea’s National Security Law - ironically - also is based on colonial-era Japanese law and was used by the Rhee, Park and Chun administrations to deal with political opposition. The most controversial section of the law is Article 7, which even after amendment in 1991 provides substantial discretion to prosecute those who hold dissenting views. Among the most striking cases recently brought under this statute was neither the deportation of Shin Eun-mi nor the arrest of Hwang Seon, but the decision by the Constitutional Court to dismantle an entire political party - the UPP - in response to infantile remarks made by one of its leading members, Lee Seok-ki. Not only was the party disbanded, but the administration even banned protests of the government actions.

To be clear, every democracy grapples with the limits of free speech; hate speech is currently a contested topic on U.S. college campuses and different societies will come to different conclusions over issues such as pornography and national security. But John Stuart Mill’s defense of freedom of expression bears restating. Mill noted that the unpopular views of dissidents and minorities might be true and so need to be aired for that reason. But even if claims are false, they need to be debated to be proven false. What better way to deal with the extremists on both left and right than by exposing them to scrutiny - and public ridicule? The fact that the South Korean public remains divided on the issue of the National Security Law, criminal defamation and campaign laws should not matter. In democracies, majorities - and particularly incumbents - should not be allowed to trump rights that are fundamental to the maintenance of liberal democracy.

*The author is Krause Distinguished Professor at the Graduate School of University of California in San Diego.

by Stephan Haggard