Two pieces of legislation have recently been submitted to South Korea’s national assembly, their purpose clearly to restrict people’s rights to . Both have been submitted by the Grand National Party, the country’s majority ruling party, with the likelihood of being passed before the end of the ongoing legislative session on December 10, 2008.
The first piece of legislation is a “law on class-action lawsuits against illegal, collective actions,” initiated by 24 lawmakers from the ruling party. In the words of one lawmaker Sohn Beom-gyu, “This bill does not restrict the freedom of expression and assembly,” but rather aims at “establishing the rule of law and preventing social damages caused by illegal protests”. This is a clear reference to the huge candlelight protests that rocked the government since May of this year.
According to the proposed bill, “illegal collective actions” refers to all illegal acts such as assault, threats, damage to property, and incendiary behaviour, whether committed with intention or not, during an assembly or protest. When there are more than 50 complainants, the bill allows for one or a few persons, as representatives, to file a class-action lawsuit against the protesters. Provisions of the bill also allow for a person who helped the illegal acts to be accused, and for the court’s final decision to apply to other persons not involved in the lawsuit.
Despite serious local criticism that this bill is an attack on the candlelight demonstrations and will gravely violate freedom of assembly, the government is keen to pass it, with justice minister Kim Kyung-han agreeing on the necessity of such a law during the parliamentary audit on November 3.
The second piece of legislation is a revision of the criminal code, increasing penalties for online defamation and insult. Senior policy coordinator Chang Yoon-seok submitted this bill, which will allow prosecutors to press charges for “cyber defamation” and “online libel”. The proposed revisions include the assessment of up to nine years imprisonment or 50 million won in fines for spreading information defamatory to others through the internet, regardless of whether it is fact or falsehood. A similar amendment to the Act on Promotion of Information and Communications Network Utilization and Information Protection was submitted on October 31. That amendment includes an assessment of up to two years imprisonment or 10 million won in fines for the online spreading of information defamatory to others.
More importantly, the proposed revision of the criminal code makes defamation an offence subject to prosecution without complaint, from an offense subject to prosecution on complaint, although it cannot be punished if the victim expresses a dissenting opinion. The police and prosecution can thus undertake investigation into instances of ‘defamation’ on their own initiative. They are allowed to search computers and relevant data as well as summon persons as they see fit.
Amidst local criticism against such criminalization have been the voices of legal experts as well as the government’s own National Assembly Research Service (NARS). A group of 228 legal experts, journalists and law scholars issued a press release on November 11, 2008 likening the proposed revision to a national security law for cyberspace. They also denounced it as a blatant attempt to silence political and social criticism via South Korea’s vibrant online citizen media and a severe restriction of the freedom of expression.
Under Anglo-American law, defamation is not usually considered a criminal offence. Under continental law as exists in Germany, France or Japan, while a criminal provision for defamation exists, it is rarely used, and it is an offense subject to prosecution on complaint, with the maximum punishment being less than two years of imprisonment. According to a NARS report, China is at present the only country legally stipulating the criminalization of cyber insults, while among democratic countries, South Korea has the harshest policy pursuing criminalization of cyber insults.
Moreover, there are also doubts regarding the effectiveness of such criminalization. According to NARS, the majority of insults in cyberspace involve cursing, which can in fact be dealt with through filtering services. The need to develop a social and ethical consciousness amongst internet users in their teens and 20s, who represent a large portion of those committing cyber crimes, is more pressing than legal sanctions that could be avoided in roundabout ways. Not only will the introduction of this new legislation violate fundamental rights protected by South Korea’s constitution, but new means will also be available to the government to silence criticism and dissent. In the case of the candlelight demonstrations, police have already arrested several internet activists on charges of ‘inciting illegal protests’.
These two bills have been heavily pushed by the ruling party despite recent court decisions upholding the freedom of expression. In the prosecution of a 19-year-old student who sent a mobile message to his friends encouraging them not to go to school and to protest against American beef imports for instance, the court found him innocent of the charges of spreading false rumors with the purpose of harming public interest and objecting to the conduct of school administrations. According to the court, his message simply expressed his personal opinion, while encouraging voluntary student participation in the candlelight protests.
It is of grave concern that the proposal of such regressive laws comes at a time that South Korea’s police, justice minister and prime minister have refused to accept the National Human Rights Commission’s findings regarding police abuse of power during the candlelight protests. The ongoing investigation and prosecution of several candlelight protesters has already been broadly criticised by rights groups as an attack on the freedom of expression and assembly. If these two laws are introduced, room for expression and protest will be significantly reduced and will adversely affect democracy within the country.
For this reason, the Asian Human Rights Commission urges the government and the ruling party to withdraw these bills and safeguard the freedoms guaranteed by South Korea’s constitution, as well as the International Covenant on Civil and Political Rights, to which it is a state party. Its obligations as a member of the UN Human Rights Council should also be kept in mind. The international community, including the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, should also consider taking this matter up with the government of South Korea.
