April 29, 2019
His Excellency
Moon Jae-in
President of the Republic of Korea
Seoul
Your Excellency:
We are a group of Koreans, Americans, and Europeans of diverse viewpoints and ethnicities who are concerned about Korea, and about human rights everywhere. We write to express our particular concern about your government’s use of South Korea’s defamation laws to censor political speech, and to call for the release of all prisoners jailed for the peaceful expression of ideas, no matter now controversial, and regardless of the viewpoint expressed. A vibrant exchange of ideas—including controversial ideas that evoke painful debates about history, policy, politics, and politicians—is what makes a society free. Freedom of speech means nothing if it only protects uncontroversial ideas, and unless it guarantees the right to criticize and challenge the powerful.
A UN Human Rights Commission Special Rapporteur has called the use of criminal defamation laws by public officials “to silence criticism regarding their personal activities or public policies” a “threat to the freedom of journalist and to press freedom.”[1] The Helsinki Commission calls criminal defamation laws “an infringement on the fundamental right to free speech.”[2] Amnesty International, Human Rights Watch, Reporters Without Borders, and other human rights advocacy organizations have criticized the use of criminal defamation laws to censor journalists, activists, and politicians in a myriad of places and contexts.[3]
Under South Korean law, the authorities may prosecute a speaker for speech that harms the reputation of a politician, a government agency, or a corporation. Truth is not a complete defense to a criminal defamation charge. We agree with Human Rights Watch that these laws are “draconian” and have been used “to silence the media and civil society activists expressing views or making reports that go against the government’s views.”[4] We agree with Pen America that they “can act as a powerful tool of repression for any government” and “are routinely used against rival political groups and journalists who spread unflattering facts about the South Korean government.”[5] We join Article 19 in calling them “a grave threat to freedom of expression” and in calling for their repeal.[6]
We note that criminal defamation prosecutions have been rising since long before your term in office. They more than tripled during the presidency of former human rights lawyer Roh Moo-hyun, whom you served as Chief of Staff.[7] Criminal defamation prosecutions continued to increase under Roh’s successor, Lee Myung-bak. Former President Park Geun-hye also sued journalists over critical reporting of how she performed her duties as president.[8] In 2014, you strongly criticized former President Park for prosecuting a journalist for criminal defamation, saying, “I do not necessarily agree with the views of the Sankei Shimbun, but I do not believe that indicting an individual for publishing false facts is the right thing to do.” You added that freedom of expression must be “guaranteed to the utmost.”[9] We believe you were right then. That is why we are so gravely disappointed that you and your administration have also used the same criminal defamation laws to censor your own critics and political opponents.
For example, while still a candidate for President, you sued former Foreign Minister Song Min-soon over an allegation of paramount public interest to the voters—an allegation that in 2005, as then-President Roh’s Chief of Staff, you sought North Korea’s views as to how South Korea should vote on a resolution condemning Pyongyang’s human rights abuses. The leader of your political party has repeatedly threatened those who criticize or disparage you with political prosecution.[10] Your administration filed criminal charges against Koh Young-ju, a former prosecutor, for calling you a Communist, and against Dr. Ji Man-won for accusing your former Chief of Staff, Im Jong-seok, of sympathizing with the regime in Pyongyang. It imprisoned an opinion journalist, Byun Hee-jae, for questioning the evidence on which your predecessor was impeached and removed from office, and even took the extraordinary step of jailing Mr. Byun without bail while pending trial. Police interrogated Kim Hye-kyung, the wife of a provincial governor from your own party, for allegedly disparaging you online in the course of defending her husband’s innocence of criminal allegations against him. Recently, the police opened a criminal defamation investigation into posters found on college campuses that satirized your economic and North Korea policies. The U.S. Department of State’s most recent annual report on human rights practices also cited your government’s recent criminal defamation prosecutions as a cause for concern about South Koreans’ freedom of expression.
These cases appear to be examples of a government censoring forms of political expression that lie at the very core of what Article 21 of South Korea’s Constitution protects. We make no distinction as to the ideology of the speaker or the subject of the speech. We criticize the abuse of defamation laws by you and by your predecessors with equal force. We make no judgments as to the truth or falsity of any of the cases we cite in this letter and defer those questions to the Korean people to decide in the marketplace of ideas. We do not deny that some of the criticisms are harsh and intemperate, but free societies protect the rights of citizens, journalists, commentators, and politicians to express harsh and intemperate opinions. We simply argue for the principle that the peaceful expression of ideas should never be a crime in a free society, and that a society that jails people for the peaceful expression of ideas cannot, by definition, call itself free. We also add our voices to the concern that the fear of defamation suits may chill the reporting of sexual assaults. For these reasons, we respectfully ask the following:
First, that you ask the National Assembly to repeal your country’s criminal prohibitions against defamation, including Articles 307 and 310 of the Criminal Act.
Second, that you also ask the National Assembly to ban civil defamation suits for speech concerning matters of public interest, and clarifying that in such matters of public interest, it is an absolute defense that the speaker reasonably believed her speech to be factual or offered a fair comment on a matter of public interest.
Third, that you grant an immediate and unconditional pardon to all persons who are pending prosecution or serving sentences for criminal defamation, except when the speech prosecuted advocated acts of physical violence. To the extent that a defendant is serving a sentence for criminal defamation and other cognizable crimes, we urge you to grant clemency to reduce the prisoner’s sentence in proportion to that part of the sentence that is attributable to the defamation conviction.
Finally, we wish to express other concerns about freedom of speech and of the press under your administration, including reports that it has suppressed criticism by North Korean émigrés of human rights abuses by Kim Jong-un’s regime, the ethnically-charged criticism of a journalist by the Spokesman for the Democratic Party that caused her to suffer online harassment and threats to her safety, and proposed restrictions on online speech, including demands that Google Korea remove politically oriented videos that members of your party have subjectively declared to be “fake.” We consider all of these limits to be incompatible with freedom of expression, and we urge you to validate the hopes of the world that you will make South Korea a truly free and open society.
Sincerely,
Gordon Chang
Prof. Jerome Cohen
Rabbi Abraham Cooper
Jack David, Esq.
Dr. Nicholas Eberstadt
Dr. Sandra Fahy
Aidan Foster-Carter
Steve Kahng
Soo Kim
Prof. Sung-Yoon Lee
Bradley Martin
Michael Maya, Esq.
Dr. Tara O
Jihyun Park
Yeonmi Park
Dr. Greg Scarlatoiu
Dr. Suzanne Scholte
Joshua Stanton, Esq.
Mike Tharp
Prof. Andrew Yeo
[1] https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-17_en.pdf
[3] https://www.amnesty.org/en/search/?q=criminal+defamation&sort=relevance
https://www.hrw.org/sitesearch/criminal defamation
https://rsf.org/en/thematique/internet?thematique%5B244%5D=244
https://pen-international.org/news/event-defamation-global-perspectives
[4] https://www.hrw.org/news/2017/03/30/submission-universal-periodic-review-south-korea
[5] https://pen.org/south-koreas-defamation-law-a-dangerous-tool/
https://www.chicagotribune.com/news/ct-xpm-2003-08-25-0308250254-story.html
[8] https://www.nytimes.com/2016/03/06/world/asia/defamation-laws-south-korea-critics-press-freedom.html
[10] https://twitter.com/ChooMiAe/status/991478972494983169
https://twitter.com/kylepopeza/status/991485457476214784
