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against the government.” The theoretically most compelling justification for the rule that defamation of
the government must be immunized is that there should be no distinction between defamatory criticism of
governmental conduct and defamatory comment aimed at individual officials in connection with their
public conduct. As Professor Rodney Smolla forcefully argues in relation to free speech jurisprudence of
the United States, “[A]t the top levels of government it is impossible to separate the person from the
government unit itself. If individual identity and governmental identity merge at the top of the
government pyramid, then to criticism the individual is to criticize the government, and such criticism,
even if false and defamatory, is absolutely protected under the First Amendment.”
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The Smolla theory is deserving of careful consideration in Korea because there tends to be little
demarcation between top government officials and their offices. This is painstakingly clear when viewed
against the never-ending corruption scandals enveloping numerous government officials, their relatives,
and friends in recent years. Of course, Smolla’s argument can be refined so that Korean judges may
experiment with a new precept of political libels that individual officials’ libel claims should be
scrutinized by focusing on how close they are to the broader functions of their offices.
If there is a close nexus between the defamatory stories complained of and the public official’s
governmental function, Korean courts should presume that they are libels against the government, not
against the individual official, and thus no cause of action for libel. If the nexus is not close enough, the
courts may consider the responsibility and control of the officials over the governmental conduct at issue.
Again, the operational concept underlying the judicial approach to political libels should be to give the
benefit of the doubt to the public’s right to discuss governmental conduct with virtual impunity rather
than to the official and political reputation of the public office holders. This more likely will ensure that
the “preferred position” of press freedom, as eloquently articulated by the Supreme Court of Korea in
January 2002, will be closer to a reality in Korea in connection with the Korean news media’s political
criticism, because it will preempt a vast majority of politically (and ideologically) motivated libel suits
against the media.
Convention