(Page 23 of 23) - News Media and Defamation Law in South Korea: A Case of the 'Positivist, Instrumentalist Interaction' authored by Youm, Kyu.

Series of Prominent Judgments of the Supreme Court Upon Questions of Constitutionality No. 22 (1988). For a discussion of the
Hoppo Journal Co. case, see Kyu Ho Youm, “Libel Laws and Freedom of the Press: South Korea and Japan Reexamined,” 8
Boston University International Law Journal 53, 72-77 (1990).

376 U.S. 254 (1964). For an informed discussion of New York Times Co. v. Sullivan from an English law perspective, see Ian

Loveland, Political Libels: A Comparative Study 65-114 (2000).

For a discussion of the "actual malice" rule adopted by courts in Australia and India in 1994, see Nick Braithwaite, The

International Libel Handbook: A Practical Guide for Journalists 40-41, 163-64 (1995). See also Lord Lester, "Private Lives and
Public Figures: Freedom of Political Speech in a Democratic Society," 4 Comm. L. 43, 45 (1999). The Supreme Court of Taiwan
has also embraced the “actual malice” rule in criminal libel law. See Committee to Protect Journalists (CPJ), Attacks on the
Press in 2000, at 203 (2001). In an e-mail dated July 20, 2001, Professor Ying Chan of Hong Kong University wrote to the
author:

Taiwan's appeal court decided late last year to uphold the lower court's decision [in which Professor Ying
Chan was charged with criminal defamation] which establishes the actual malice standard for Taiwan.... As
the CPJ reports says [sic], the standard has been upheld by Taiwan's Supreme Court, who used the same
reasoning as the amicus we submitted in the first place.

What happened was that the defendant in another case, which has lost in the lower courts, used our lower
court decision to appeal to the Supreme Court and won. The Supreme Court's decision was known as
the Interpretation 509, a landmark interpretation of the Taiwan criminal libel statue [sic]. After that, our case
was heard in the Appeal Court which ruled in favor of us using the 509 standard. Since then, politicians have
avoided using the criminal libel weapon to go after the media. Instead, they resorted to suing for civil libel ....

In addition, the Sullivan “actual malice” defense was recognized by the Supreme Court of the Philippines in 1999

Honest criticisms on the conduct of public officials and public figures are insulated from libel judgments.
The guarantees of freedom of speech and press prohibit public officials and public figures from recovering
damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was
made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was
false or not. (N.Y. Times v. Sullivan, 376 U.S. 254 [1964] cited in Borjal v. C.A. 301 SCRA 25 [1999]).
“Reckless disregard of what is false or not” means that the defendant entertains serious doubt as to the truth
of the publication (St. Amant v. Thompson, 390 U.S. 731 cited in Borjal p. 29) or that he possesses a high
degree of awareness of their probable falsity (Garrison v. Louisiana, 379 U.S. 731 in Borjal p. 29).

Luis v. Teodore & Rosalinda V. Kabatay, Mass Media Laws and Regulations in the Philippines 200 (2d ed. 2001).

The “small group theory” posits that if the defamatory language is directed toward “a comparatively small group of persons ...

and is so framed as to make defamatory imputations against all members of the small or restricted group, any member thereof
may sue.” Ewell v. Boutwell, 121 S.E. 912, 914 (Va. 1924).

Dean v. Dearing, 30 Media L. Rep. (BNA) 1698, 1700 (Va. 2002) (citations omitted).

Seoul District Court, 99 Kahap 88873, June 7, 2000.

Rodney A. Smolla, Law of Defamation § 2:114, at 2.137 (2002).