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"decisive" factor in the court rulings in favor of the media defendants. "What is given weight in court
decisions has been the proof of the ’truth’ of the news story in question," the study found. "This shows
that Korean courts’ acceptance of ’public figure’ as a concept has not been sufficiently systematic to make
it effective as law. Rather, it has been no more than a judicial attempt to express the ’public figure’
concept."
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The Julie Moon and Yu Myong-ja cases are illustrative.
The courts generally apply to petitions for injunctive relief under the Civil Code the same
standard that has derived from judicial interpretations of the Criminal Act provisions on libel.
Nevertheless, it remains to be seen how conscious trial judges in Korea are of the clearly recognized
problems with using prior restraint as a way to protect conflicting interests resulting from press freedom.
Senior Prosecutor Pyo Song-su of the Seoul District Prosecutors Office suggested that injunction
should not be granted against defamatory publications when "there is a possibility that the publications
are exempt from liability."
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He added: "Petitions for injunctions against the defamatory publications
may be considered only if the publications are clearly not for public interest and only if there is no
substantiality to misbelieving the truth of the publications."
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Pyo continued that prior restraint should
accompany a threat that irreparable damage to reputation will occur if it is not imposed, and it also should
involve an urgent situation which leaves no alternative legal means to avoid the threat.
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Likewise, An Sang-un, a leading libel law attorney in Seoul, cautioned against imposing
injunctions on libelous statements without considering their harmful impact on freedom of expression.
He proposed the minimum set of requirements that a trial judge should meet before granting injunctive
relief against libel as an exception:
It is clear that the defamatory statement is not true. Even if the statement is true, it is not
a matter of public interest and its publisher is aimed at injuring the reputation of the
defamed. And after considering comprehensively the type of injury, the relationship
between the defamer and the defamed, and their social standing, there is a serious and
obvious threat that the defamed will suffer an irreparable damage.
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Pyo is skeptical about introducing the American law concept of "actual malice"as an element for
the petitioner to establish in claiming for injunction against libel in Korean law.
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No Korean jurist has
yet argued for making injunctive relief in libel law more strict than that followed by Korean courts. But
Korean courts ought to pay close attention to several conditions that ARTICLE 19 in London has
identified as requisite for issuance of interim injunctions in a defamation action. Injunctions can be
issued only in “highly exceptional” cases where all the following conditions are met: “(1) The plaintiff
Convention