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Free Government Information (FGI) is a place for initiating dialogue and building consensus among the various players (libraries, government agencies, non-profit organizations, researchers, journalists, etc.) who have a stake in the preservation of and perpetual free access to government information. FGI promotes free government information through collaboration, education, advocacy and research.

A Nation Punishes A Lie (Jinbonet)

[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.

There is no so-called illegal download! (Jinbonet)

There is no so-called illegal download! (Jinbonet)

by Oh Byoungil, Staff coordinator of Korean Progressive Network ‘Jinbonet’ (translated by Shinjoung Yeo)

Popular celebrities (Ahn Seong-gi, Park Joong-hoon, etc.) in South Korea have launched a public campaign called “good downloader.” The message of this “public campaign” is that films and animations where these actors/actresses and singers are starring are in danger due to illegal downloading.

The dominant perception among many Koreans is that any downloading activities without the copyright owner’s permission is considered “illegal.” In fact though the Copyright Act of South Korea recognizes that reproduction of copyrighted works for private use is regarded as “[w:fair use]” under Article 30 of the Copyright of Act. Article 30 the Copyright Act states:

“A user may reproduce by himself a work already made public for the purpose of his personal, family, or other similar uses within a limited circle, not for profit purposes: provided that this shall not apply to reproduction by a photocopier set up for public use.”

Examples of reproduction for private use could include: recording TV drama to watch later, copying part of a textbook and converting a CD to MP3 for personal use. Downloading a movie from the Internet for private viewing is also protected under Article 30.

The idea behind the Reproduction for Private Use provision is that non-commercial activities within a limited circle hardly affect the profits of copyright owners; furthermore, getting permission from copyright owners for each private use could be more costly. In addition, it is unrealistic to regulate private activities that could easily lead to invasion of privacy. Up until now, most copyright regulation had been exercised not via the downloading of content but rather on the uploading side of the equation; in fact copyright violation cases have been against people who were uploading materials rather than downloading. In addition, the South Korean Government’s copyright enforcement has primarily been against Internet Service Providers — including portal sites, webhard services, P2P services, etc. Thus, under article 30, there is no so-called “illegal downloading” in Korea — all reproduction for private use is perfectly legal.

In 2008 there was a controversial ruling in regards to reproduction for private use. In August 2008, the Seoul Central District Court ruled that even if a user downloaded a work for personal use, it could not be considered fair use under article 30 if the work was an illegal file. This is a first round ruling which has received much criticism from copyright experts because there is no clear statement in the Copyright Act on which the ruling can be grounded and there is no basis to deny the intent of reproduction for private use provision.

As legal disputes have arisen, the South Korean government has attempted to legislate “illegal download” as an exception under article 30. In February of 2010, the Ministry of Culture, Sports and Tourism announced a legislative proposal to amend the current copyright law. The proposed amendment includes a clause whereby if a person makes a reproduction of an illegally reproduced work with knowledge of the illegality of the reproduced work, s/he shall not be protected by the reason of Private Use.

This proposed amendment has been criticized by many civil society organizations and copyright experts. In March of 2010, IP Left and Korean Progressive Network Jinbonet had a joint press release and expressed concern that, “not only does this amendment not have an actual effect but it also would lead to the monitoring of users’ activities” and demanded that the amendment be abolished. As mentioned before, considering the intent of reproduction for private use provision, even if this amendment is adopted, it will be extremely difficult to enforce the law by finding out users’ illegal downloading activities.

These civil society organizations additionally argue that in order to enforce this amendment effectively, there is a possibility that it will lead to additional laws that justify the invasion of privacy and the collection of private information. The purpose of copyright law is to promote culture and arts by providing temporary exclusive right to the copyright owner. While this is an artificial right, privacy is a basic right that is guaranteed by the Korean Constitution and the United Nations’ [w:Universal Declaration of Human Rights].

The invasion of citizens’ privacy should not be rationalized in the name of the protection of copyright; there is a danger that the amendment could justify the exercise of government power over citizens’ privacy. Neither the creation of an ineffective law nor the monitoring of internet users for effective enforcement of the law is desirable.

Another criticism on the proposed amendment is the ambiguity of the clause. The question is how law enforcement will judge and prove whether a user has knowledge of the illegality of the reproduced work. This ambiguity could discourage the use of works and bring a chilling effect where users may decide not to exercise their right to use the work for private purposes due to fear of possible copyright infringement. In reality, lots of works on the Internet are wrongly marked or unclear whether they are legally or illegally attained. It is not easy to verify the legality of a work. If the South Korean government puts this law into effect then every time one receives an email from a friend that includes a work s/he might need to verify the legality of the work.

Like many other countries in the World, South Korea has been strengthening their copyright law. The IP section of the Korea and U.S. Free Trade Agreement (KORUS FTA) — waiting to be approved by the South Korea National Assembly — requires a bolstering of current Korean IP law. Yet, this goes against the will of South Korean citizens and contradicts the purpose of copyright which intends to foster culture, art and science. Citizens’ right to access to information and freedom of expression on the Internet is being increasingly threatened.