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Due to a rapid shift in cultural and legal conditions and in the media environment, in
recent years Korea has experienced an explosive increase in libel actions against the
media. The fact that the Korean media have been inundated with political libel suits and
that the press has lost all the cases thus far has caused hot debates over freedom of the
press. Saying that “group libel charges by the prosecutors have caused a serious chilling
effect on freedom of the press,” the Journalists Association of Korea claimed that legal
circles, prosecutors and judges are waging a war against the press on the pretext of
checking the press’s power. A journalist insisted that group libel charges by the
prosecutors have been encouraged and manipulated by the government and that the
prosecutors have been successful in their strategy of intimidating the press.
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On the premise that “political freedom ends when government can use its powers and its courts to
silence its criticism” and “the presence or absence in the law of the concept of seditious libel defines the
society,”
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this paper focuses on the “positivist, instrumentalist” interaction between press freedom and
political libels in South Korea. The paper first analyzes the constitutional and statutory status of freedom
of the press and reputational interests. Next, the analysis examines the judicial interpretations of the
Constitution and various statutes affecting press freedom vs. reputation. Finally, the author highlights the
short- and long-term implications of political libels for the freedom of the Korean press and suggests
several propositions as a possible way to rethink political libels in the context of Korea’s liberal
democracy.
I. Constitutional and Statutory Framework
The Constitution of Korea expressly provides for freedom of speech and the press as a right:
(1) All citizens shall enjoy freedom of speech and the press ...;
(2) Licensing or censorship of speech and the press ... shall not be recognized;
(3) The standards of news service and broadcast facilities and matters necessary to ensure the
functions of newspapers shall be determined by law;
(4) Neither speech nor the press shall violate the honor or rights of other persons or undermine
public morals or social ethics. Should speech or the press violate the honor or rights of other
persons, claims may be made for the damage resulting therefrom.
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The explicit prohibition against prior censorship of speech and the press under the 1987 Constitution is a significant
improvement of the Constitution of 1980, which did not proscribe censorship of expression. On the other hand, the
current Constitution, unlike its 1980 predecessor, stipulates a requirement that standards concerning newspapers,
broadcast stations, and news services be set statutorily.
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Several other provisions of the Constitution relate to freedom of speech and the press in one way or
another. Article 37 forbids the disregarding of other basic freedoms and rights on the grounds that they are not
enumerated in the Constitution. Nevertheless, the constitutional freedoms and rights of Koreans may be restricted
by law under such circumstances as are necessary "for national security, the maintenance of law and order, or for
Convention