[This is the 2nd in our guest blogger series with internet activists from Jinbonet Korean activist network. Translation assistance by Shinjoung Yeo]
A Nation Punishes A Lie
By Jung Minkyung
Staff of Korean Progressive Network Jinbonet since 2009
In South Korea, there is a law that punishes a lie. According to Article 47 clause 1 of the Framework Act on Telecommunications:
“A person who has publicly made a false communication over the telecommunications facilities and equipment for the purpose of harming the public interest shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won.”
When a person who circulates false information unjustly makes profits or harms other people, the person can be punished for defamation, fraud, trade mark infringement, etc. However, this clause allows a criminal penalty without questioning whether the circulation of false information harms the public interest. That is, “false communication” itself can be punished. In addition, the biggest problem is that the clause has been exploited for political purposes.
So far, the majority of the cases on this has been related to criticism of government policies or the President. Article 47 Clause 1 of the Framework Act on Telecommunications was established 45 years ago, yet this odd clause has never been used until 2008. In 2008, during a massive candlelight protest against US beef imports, a rumor circulated that a female college student had died at the hands of a police officer. As the rumor spread on the Internet, the prosecution indicted the person who had spread the rumor on the basis of circulation of false information.
Since then this clause has become known and become a serious social controversy — even raising a comical incident in the case of a famous blogger nicknamed “Minerva.” Minerva was prosecuted for posting an article online that said, “the government issued an “emergency order” to major financial institutions to stop buying US dollars as if foreign exchange would stop due to depletion of foreign currency reserve.” The majority of Koreans criticized his indictment on the basis of merely expressing his opinion and predicting economic doom. After Minerva’s indictment, many netizens announced their last piece of writing on the Internet. The Minerva case has brought a widespread chilling effect.
The comedy of the prosecution did not stop there. In 2008, the prosecution indicted citizens for sending text messages to suggest that students strike against US beef imports or create parody materials ridiculing current South Korea president Lee Myung-bak. Both cases were ruled as not guilty but these are clear cases which infringe on freedom of expression by forceful indictment.
Netizens were also indicted for questioning the government’s announcement that a North Korean torpedo had attacked the South Korean warship Cheonan — or suggesting different views from the government. Recently, numerous people were indicted for spreading false information on the Internet in regard to the incident of North Korean artillery attack on Yeon Pyung Island. Despite citizens having the right to freely discuss and express diverse opinions, the prosecution ruled that this act was intended to harm the public interests by circulating clearly false information.
During the Yeon Pyung Island artillery incident, many students and other citizens were investigated or actually indicted because they had sent prank text messages to friends and said, “I heard that a war is about to break out” or “government is calling for reserve troops.” Most people took these messages as the pranks that they were as no one was harmed by the messages. Through mass media, the government could clarify their position, yet they took legal action in response to the pranks and citizens’ opinions to question the administration’s position.
Fortunately, on December 28, 2010, the Constitutional Court ruled that Article 47 Clause 1 of the Framework Act on Telecommunications was unconstitutional. The logic behind this decision is that this clause violates the constitutional principle of a clear definition and excessive restriction. The concept of “public interest” is unclear and abstract and it is difficult to judge objectively what kinds of acts maybe considered as harming to the “public interests.” Also, the expression of false information is protected under freedom of expression and freedom of press within the 21st Amendment of the South Korean Constitution. Thus, Article 47 clause 1 of the Framework Act on Telecommunications clearly violates freedom of expression.
However, immediately after the Constitutional Court ruling, the South Korean government began pushing forward an alternative legislation. The Ministry of Justice announced that in order to resolve the legal vacuum, they would soon push a bill to provide legal grounds to punish those spreading false information on war or terrorism that harms or puts at risk the national welfare. A member of the ruling Grand National Party (GNP) proposed alternative legislation to change the phrase from intention to “harms the public interests” to “national security, social and economic order or normal operation of public institutions.” However, on the basis of the recent Constitutional Court ruling, there is a great possibility that this alternative legislation will be unconstitutional as well.
The reason a majority of people express criticism about the government is because they question the administration’s position or think that the government is doing wrong. In the case of harming others and unjustly making profits, there are existing laws like fraud or trademark infringement which can be applied. Thus, punishing someone for merely “false” information should not be tolerated in a democratic country where people have a right to express diverse opinions and discuss freely. No one can own the truth exclusively and there is no need for alternative legislation for the clause that already turns out to be unconstitutional.
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