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can show that he or she would suffer irreparable damage--which could not be compensated by subsequent
remedies--should further publication take place; (2) The plaintiff can demonstrate a virtual certainty of
success, including proof that the statement was unarguably defamatory, and that any potential defenses
are manifestly unfounded.”
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A Supreme Court justice in Japan, however, suggested "actual malice" for adoption as a prior
restraint test for defamation "when the victim of defamation is a public person ... and the contents of the
expression are on public matters."
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Given the steadily growing “actual malice” impact of New York
Times Co. v. Sullivan,
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a 1964 landmark case of the U.S. Supreme Court, abroad,
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Korean courts might
consider introducing a Sullivan-style defence into Korean law starting with injunction in public libel
cases.
In this connection, Korean courts might consider revisiting the “colloquium” issue of group libel.
This is all the more appropriate when the news media publish “unflattering” criticism of governmental
conduct as a primary focus while alluding to government officials. The “small group theory”
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should
apply to government officials warily when they are required to meet the “of and concerning” element of
their defamation cause of action. The Virginia Supreme Court’s recent re-examination of the small group
theory in American libel law should be instructive:
[The use of the “small group theory” alone as the basis for satisfying the “of and
concerning” element of a common law defamation action against a governmental actor
does not survive constitutional scrutiny. An allegedly defamatory statement which
imputes misconduct generally to a governmental group constitutes libel of government,
for which there is no cause of action in American jurisprudence.... A member of a
governmental group against which an allegedly defamatory statement is made can sustain
a common law action for defamation only if that member can show the statement
specifically implicated that member or each member of the group.... Such implication
can be shown by extrinsic evidence, but evidence that others “understood” the
implication based solely upon a plaintiff’s membership in the referenced group, will not
satisfy the “of and concerning” requirement.
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In this light, the Seoul district court’s June 2000 ruling in a group libel action displays a sensible
understanding of the “specificity” of the identification of those defamed. The media libel case stemmed
from 10 prosecutors’ damages claims against the Han-kyoreh Shinmun, which reported that the Seoul
District Prosecutors Office tried to protect one of its employees rather than investigating his alleged crime
of taking bribes. The Seoul district court ruled that two of the 10 prosecutors could recover damages
because they were specifically mentioned in the story, but dismissed other prosecutors’ claims. The
Convention