Extract taken from 'The Media and Entertainment Law Review - edition 1'

Free speech and media freedom

i Protected forms of expressionFree speech

Freedom of expression is a right recognised by the Constitution of Korea. In Korea, freedom of expression encompasses the freedom of speech and press. The Korean Constitutional Court has held that all forms and channels for communication and expression are protected by the right. Nevertheless, this right may be restricted based on the content of expression, including those that harm another party’s reputation or infringe upon another party’s rights.

Restrictions on freedom of expression

There are some restrictions on freedom of expression that are particular to certain forms of communications.

Broadcast communications

The KCC publishes the Regulations on Broadcasting Standards, and reviews broadcast communications after they have aired. The KCC also publishes the Regulations on Broadcast Advertisement Standards for advertisements. After a review of the content that was aired, the KCC may impose sanctions on the relevant broadcasting companies, programme providers or production companies when the content, as a whole or in part, is not compliant with the above regulations.

Ratings

The KMRB requires films and videos to be rated by it before they are distributed through various channels. While there are broad exceptions to this requirement (e.g., free videos open to the public provided through telecommunications network are exempt from this requirement), if a person screens films or videos without a rating, or provides these films or videos in a way that is not compliant with the rating, that person may be subject to criminal sanctions. As mentioned in Section II.ii, broadcasters are required to rate their broadcast programmes and indicate the rating while broadcasting the programme.

Online regulations

The Act on Promotion of Information and Communications Network Utilisation and Information Protection, etc. (the Network Act) prohibits the distribution of illegal content, including content that is obscene, injures another’s reputation, or is greatly harmful to teenagers and juveniles. The KCC regulates accordingly by establishing content standards and conducting an ex post review of the content. After the review, the KCC may issue a corrective order to the telecommunications service operator or the publisher of the content.

Regulations on hate speech

To date, there are no laws in Korea that regulate hate speech (i.e., speech that spurs animus towards a particular race, nationality or class of people). While Section 2 of the National Human Rights Commission Act considers any discriminatory actions against another party because of their sex, religion, etc., to be an infringement on their right to equality (as protected by the Korean Constitution), this law has little practical effect as there are no sanctions against violators under the law. In response, there have recently been moves to submit bills that regulate hate speech.

General civil and criminal regulations

Any infringements on another party’s rights, such as reputation, privacy, or image, may be subject to criminal and civil liabilities.

ii Newsgathering

There are no laws that provide immunity to liability for newsgathering. A recent lower court decision held that, notwithstanding the freedom of press, any actions by the press that are in violation of express laws are not protected, and that the legality of an investigative action by the press can only be determined after a balancing of the legitimacy of the purpose behind the action, the rights protected by the act, the rights infringed by the act, the commonality of the action, and the exigency of the situation. A person who trespasses, secretly records a third party’s conversation or commits other violations of law (or causes another person to commit any of the foregoing violations) for the purpose of newsgathering may be criminally liable. Under current law, a party to a conversation may legally record the conversation without the other parties’ consent, but on 27 June 2019, a new bill was introduced that criminalises the act of recording a conversation without the other parties’ consent.

A recent lower court decision found a person who replayed a secretly recorded conversation (in which the person was a participant) civilly liable for violating the other party’s voice rights (portrait rights). This case is considered noteworthy because, although secretly recording conversation is not illegal in Korea as noted above, the court found the party civilly liable because the person replayed the recording without modification or alteration (consequently holding that this replaying of the recording infringed upon the subject’s portrait rights).

iii Freedom of access to government information

There are no laws that provide the media with special access to information. However, under the Official Information Disclosure Act, any Korean citizen, company or entity can request disclosure of any information held or managed by national or state agencies, local governments and local public enterprises (together, public agencies). A foreign individual can request information held or managed by public agencies only if he or she is domiciled in Korea, or is temporarily in Korea for academic research. A foreign company or entity can make the same request only if it has a domestic office or presence. In the case of companies or entities, the request should be filed by an authorised representative. Even then, in certain circumstances, such requests may be denied based on eight express exceptions specified under the law (e.g., infringements on an individual’s or company’s trade secrets that may materially harm that entity), in which case, administrative action (administrative suit, administrative appeal or objection) must be filed to reverse the decision.

Cases pertaining to information disclosure (and denials of requests thereof) are not all made public. Accordingly, only portions of a small number of court cases and appeals to the denial of requests for information are accessible. The most recent high-profile court case involving the issue of information disclosure was the denial of access to documents, such as reports on rescue activities, pertaining to the Sewol Ferry incident that claimed the lives of 304 people. On 16 April 2014, the National Archives of Korea denied a request for disclosure of documents produced by the Blue House (the President’s office) when the Sewol Ferry sank. On 21 February 2019, the Seoul High Court held that the documents should be kept confidential because they were part of the Presidential Archives designated under the Act on the Management of Presidential Archives and did not fall under an exception category specified thereunder.

iv Protection of sources

Any express laws that provided journalists with the right to remain silent to protect their sources have been abolished. Currently, there are no laws that expressly allow journalists to protect their sources and it is unclear whether source protection falls under the umbrella of the constitutional right of freedom of expression (which encompasses the freedom of press and publication).

v Private action against publicationMain claims filed against the press

Under the Act on Press Arbitration and Remedies, etc. for Damages Caused by Press Reports (the Press Arbitration Act), injured parties can file a claim against a media company for correction, counter statement or further reporting. Correction requests are made to correct untrue statements published by the company. Counter statements are available irrespective of the truthfulness of the report. Further reporting requests are claims that can be filed by a person that was suspected of or prosecuted for a crime on the fact that he or she was later deemed to be innocent or had had his or her charges dropped. These claims can be resolved by direct claim against the media company, mediation through the Press Arbitration Commission or litigation. If a report is false or materially harms the reputation of the subject and does not promote public interest, the injured subject can file for a request to delete the report.

Mediation through the Press Arbitration Commission

The Press Arbitration Commission is an alternative dispute resolution body that specialises in disputes involving press reports. The arbitration department is composed of judges, attorneys and ex-media personnel. A successful agreement between the aggrieved party (the petitioner) and the media company (the respondent) is legally binding under Korean law.

Civil suits

If a media company acts illegally, the aggrieved party can file for damages for economic harm or emotional distress, which needs to be proved by such party. Unlike the Press Arbitration Act, these suits can be filed against individual reporters.

Criminal suits

In Korea, if an aggrieved party’s reputation is injured because of a media report, a criminal suit can be filed against the publisher and individual reporter regardless of whether the report is false or not. However, in the case of reports that are truthful, statutory criminal sanctions are relatively lower. Additionally, potential safe harbours may exist for the publisher and individual reporter if the report can be proven to be both truthful and in the service of public interest (i.e., the publisher and the individual reporter may not be held criminally liable). For false reports, such safe harbour rule does not apply.

Defences for the press

Regardless of the truthfulness of a report, if a report harms an aggrieved party’s reputation, the aggrieved party may take civil and criminal action against the publisher. The aggrieved party must prove that he or she was defamed by the report. However, if the report is found to be truthful and in the service of public interest, then the publisher may not be criminally liable. Furthermore, even if some information in the report is false, if the publisher believed the information to be true (and had reasonable grounds to believe so), and the report was published for the public good (i.e., in the interest of society or large groups or members of society), the publisher may not be held criminally liable. However, the burden is on the publisher to prove their beliefs. Both the Constitutional Court and the Supreme Court have held that the level of protection for a public figure or a case involving social issues is lower, which means that the report involving such figure or case is likely to be recognised as servicing the public good.