Freedom of Expression in South Korea
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Forthcoming in the Journal of Contemporary Asia
COMMENTARY
Freedom of Expression in South Korea
Stephan Haggard & Jong-sung You(유종성) *
University of California, San Diego
South Korea is widely considered a consolidated democracy. However, there is growing
evidence that freedom of expression in South Korea has lagged that of comparable Asian
countries for some time and that it has deteriorated since 2008 (UN Special Rapporteur 2011).
Freedom House (2011, 2012a) downgraded South Korea’s “freedom of the press” status from
“Free” to “Partly Free” in 2010 and reached a similar conclusion with respect to internet freedom
in 2011. In 2013, the organization went so far as to downgrade the country’s “political rights”
ranking (on a scale of 1 to 7) from 1 to 2 due to high-profile scandals including the National
Intelligence Service’s abuse of power with respect to social media (Freedom House 2014).
Reporters Without Borders (2012), the Open Net Initiative (2011), and Amnesty International
(2012) voiced similar concerns. In an unusually wide-ranging indictment in 2011, the UN
Special Rapporteur on freedom of opinion and expression underlined a diverse set of constraints
on freedom of expression, from the abuse of criminal defamation to conflicts of interest arising
from state control of the media.
In this brief survey, we identify five recurrent issues that run through these reports: laws
governing defamation; the rules governing election campaigns; national security limitations on
free speech; restrictions related to the internet; and partisan use of state power to control the
media. We close by considering possible explanations of the phenomenon, ranging from more
distant cultural factors and the influence of the Japanese legal systems through the enduring
impact of the Cold War. However, the main problems appear political. Governments on both the
right and left have placed limits on freedom of expression in order to contain political opposition,
and constitutional, legal and political checks have proven insufficient to stop them.
*
Correspondence address: Jong-sung You, School of International Relations and Pacific Studies,
University of California, San Diego, 9500 Gilman Drive, mail code 0519, La Jolla, California 9209-0519,
USA. Email: jsyou@ucsd.edu
1International Assessments: Trends in Freedom of Expression in South Korea
Korea has long since passed the standard democratic benchmarks with the transition
process in 1987 and the transfer of power to opposition candidates, dated either to the election of
Kim Young Sam in 1992 or the election of Kim Dae Jung in 1997. However, South Korea’s
Polity score has remained at 8, behind Japan, Taiwan and Mongolia and comparable to
Indonesia, the Philippines, and India. One possible explanation for these somewhat lower Polity
scores has to do with the absence of restraints on the executive—including with respect to the
judiciary--and its corresponding effects on civil liberties and freedom of expression. Freedom
House’s “civil liberties” ranking for South Korea has remained at 2, and its “political rights”
ranking dropped from 1 to 2 in 2013. South Korea also performs poorly in Freedom House’s
measure of freedom of expression and belief. The measure is designed to capture the freedom
and independence of the media and other cultural expressions, religious freedom, academic
freedom, and freedom for open and private discussion. With a score of 14 out of 16, South Korea
is ranked behind 69 other democracies—about a third of all countries— which achieve scores of
15 or 16 on this measure.
Moreover, press freedom scores show somewhat starker differences. The Press Freedom
scores are made up of three differently-weighted components--the legal environment (30%),
political environment (40%) and the economic environment (30%)—designed to capture a wide
array of possible constraints on freedom of expression. The lower the score, the higher the press
freedom: a score of 0 to 30 places the country in the Free press group; 31 to 60 in the Partly Free
press group; and 61 to 100 in the Not Free press group.
Table 1. Trends of South Korea’s Press Freedom Score and Its Components, 2001-2012
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Press Freedom (0-100) 30 29 29 29 30 30 30 30 30 32 32 31
Legal Environment (0-30) 3 7 8 8 9 9 9 9 9 9 9 9
Political Environment (0-40) 11 10 11 11 11 11 12 12 12 14 14 13
Economic Environment(0-30) 16 12 10 10 10 10 9 9 9 9 9 9
Source: Freedom House
As can be seen in Table 1, the overall index has remained roughly constant until 2009,
within the lower bound of the “Free” category. † But Korea declined from Free to Partly Free
with a score of 32 in 2010 for the first time since 1988, placing the country roughly on a par with
Hong Kong (32), Benin (33), Serbia (33), and South Africa (33) but substantially behind Japan
†
The overall index and component scores for the pre-2000 years are not comparable to those after 2000,
because of methodological changes.
2(21) and Taiwan (25). In justifying its decision, Freedom House (2011) noted an increase in
official censorship, particularly of online content, government attempts to influence media
outlets’ news and information content, abuse of national security laws and interference in the
management of both public and private media companies.
Finally, it is worth considering freedom of expression on the internet; we again rely on a
new Freedom House indicator on Internet Freedom. South Korea’s internet freedom scores were
34 (on a scale of 0-100) in 2012, comparable to Nigeria (33), Uganda (34), and Kyrgyzstan (35)
and substantially behind the Philippines (23), Argentina (26), South Africa (26), Brazil (27),
Ukraine (27), Kenya (29), and Georgia (30). The OpenNet Initiative (2011) reached similar
conclusions and Reporters without Borders’ Internet Enemies Report 2012 noted soaring content
removal, censorship on North Korea-related materials, and political abuse of internet censorship.
We have focused here on quantitative measures that permit some cross-national
comparisons. However, the range of international and Korean sources highlighting these
problems is by no means limited to organizations providing quantitative rankings. The United
Nations (2011) and various international and Korean NGOs have also taken up the issue,
providing comprehensive overviews. ‡ Five main issue areas recur in this reporting on freedom of
expression in Korea: abuse of criminal defamation; election campaign restrictions; the National
Security Law; restrictions on free expression on cyberspace; and partisan use of state power to
control media.
Abuse of Criminal Defamation
In recent years, the use of defamation law to control speech has become an issue of
increasing international concern (ARTICLE 19 2014). Defamation laws are often written to
protect relatively ill-defined “feelings” or honor of the plaintiff—including government officials-
-or even to protect plaintiffs from statements that are factually correct but “insulting.” More
importantly, criminal defamation, libel and slander laws subject citizens to arrest, pre-trial
detention, and/or lengthy and expensive criminal trials in which political and economic elites
have inherent advantages. For these reasons, criminal defamation is rarely enforced in
established democracies. Nonetheless defamation remains a criminal offense in Korea and
successful suits can subject defendants not only to imprisonment of up to seven years for
defamation involving false facts but of up to three years for true facts as well.
Figure 1 shows that in the first decade following the democratic transition in 1987, the
number of indictments for defamation increased marginally, but then began to turn up during the
Kim Dae Jung and Roh Moo Hyun presidencies. Indictments then more than doubled between
32007, the last year of the Roh Moo-hyun administration, and 2011, the fourth year of the Lee
Myung-bak administration.
Figure 1. Indictments for Defamation, 1987-2011
10000
9000
8000
7000
6000
5000
4000
3000
2000
1000
0
Crimial Law Cyberspace
Source: Prosecution Yearbook, Republic of Korea, various years.
Criminal defamation has been used by incumbent governments and politicians on both
the left and right. President Roh Tae-woo’s political affairs secretary, Yeom Hong-chul, accused
a Hankyeoreh reporter, Kwak Byung-chan, and two other journalists for defaming the president
with an article about massive political slush funds; these charges were subsequently proven true
and the president was indicted and imprisoned for these and other crimes. During Kim Dae-
jung’s presidency, five journalists were convicted for defamation because of their criticisms of
the president as pro-Communist and other charges. President Roh Moo-hyun’s senior secretary
for civil affairs, Moon Jae-in, accused Monthly Choongang reporter Yoon Gil-joo for defaming
him; the Supreme Court ultimately overturned lower court’s conviction (Son 2012).
A number of prominent defamation cases occurred during the Lee Myung Bak
presidency, helping to account for the continuing erosion of press freedom noted above. In June
2009, four producers and a scriptwriter for the investigative television program “PD Notebook”
were detained and indicted for defaming the then Minister of Agriculture with a 2008 report on
U.S. beef imports that sparked weeks of protests. Although the courts acquitted all staff, the
4detention and trial of the journalists subjected them to lengthy and costly legal procedure and had
a marked chilling effect on public discourse (Freedom House 2011, UN Special Rapporteur
2011). The government’s investigation of the sinking of the Cheonan in 2010 generated an
important defamation suit when Shin Sang-cheol, who had participated in the Civilian-Military
Joint Investigation Group (CMJIG), quit the investigation team and publicly questioned the
credibility of its findings. He was indicted for defaming naval officers and the Minister of
Defense (Hangook Ilbo 08-27-2010). A young man committed a suicide after being investigated
by the police for criminal “insult” because of his criticism of the controversial Four River Project
on the home page of the ruling Grand National Party in 2010 (Hangyeoreh Shinmun 10-27-
2010). These behaviors have continued into the Park presidency.
Abuse of Election Laws
Korea’s election law provides a pervasive system of restrictions on the time and manner
of election campaigning. These restrictions were justified in the name of fairness between richer
and poorer candidates, but had their origins under the authoritarian Rhee Syngman regime in the
late 1950s (Song 2005). A subsequent justification for maintaining this legislation was to reduce
opportunities for corruption and vote-buying. However, these laws have all been abused to
generate electoral advantage for incumbents.
The Public Officials Election Act (POEA) generally prohibits any campaign activities
before a short, 13-day legal campaign period prior to National Assembly and local elections and
a 22-day period prior to presidential elections. Anyone violating this provision is subject to fines
or imprisonment of up to two years. This restriction produces enormous incumbent advantage
because challengers are unable to effectively promote themselves before the legal campaign
period. Moreover, there is a troubling trend of incumbents using the advantages of office to
aggressively prosecute opposition candidates, both for the prohibition on campaigning in the pre-
campaign period and on claims of false election speeches and slander. Consequences are grave.
Anyone who publishes false facts about a candidate is punishable by imprisonment of up to
seven years or a fine. Even publication of correct information about a candidate that is deemed
“slanderous” could be punishable by imprisonment of up to three years or a fine.
Table 2 shows trends in investigations, indictments and detentions for all election-related
crimes from the 15th National Assembly elections in 1996 through the 19th NA elections in 2012.
It also breaks out all investigations by the type of crime, including illegal use of money or gifts;
“black” propaganda, namely those in violation of the Election Law’s provisions on false
statements and slander; illegal propaganda, or those who violated provisions on the timing or
methods of campaigning; and other violations. It is clear that the use of these laws has occurred
across all administrations discussed here. In particular, the number of people investigated for
“black propaganda” increased from 287 during the 15th National Assembly elections to 655 in
the 19th NA elections, rising from 15 percent of total cases to over 25 percent in the 19th NA
elections.
5Table 2. Investigations for Violations of Election Laws in National Assembly Elections
(1996-2012)
15th (1996) 16th (2000) 17th (2004) 18th (2008) 19th (2012)
Investigated 1,995 3,749 3,797 1,990 2,544
(Indicted) (713) (1,552) (2,829) (1,283) (1,448)
(Detained) (175) (139) (423) (68) (115)
Money, gift 667 1,548 1,609 575 828
(33.4%) (41.3%) (42.4%) (28.9%) (32.5%)
"Black" propaganda 287 502 564 400 655
(14.4%) (13.4%) (14.9%) (20.1%) (25.7%)
Illegal propaganda 90 666 470 272 121
(4.5%) (17.8%) (12.4%) (13.7%) (4.8%)
Violence 279 208 105 58 77
(14.0%) (5.5%) (2.8%) (2.9%) (3.0%)
Others 672 825 1,049 669 863
(33.7%) (22.0%) (27.6%) (33.6%) (33.9%)
Source: Supreme Prosecution Office, Republic of Korea, Press releases (various issues).
Another striking feature of Korean electoral law is a general prohibition on the ability of
civil society groups to support or oppose a political party or candidate (UN Special Rapporteur
2011). On 26 April 2010, the National Election Commission (NEC) issued guidelines that
prohibited organizations from posting or distributing advertisements, posters, or other material
on major election issues such as the “Four Major Rivers Restoration Project” or free school
meals, a central issue in the Seoul mayoral election in 2011. During that mayoral contest, the
NEC even pronounced a guideline prohibiting celebrities known for supporting a specific
candidate from encouraging voters to cast their ballots on election day through Twitter,
Facebook, or other social media (Freedom House 2012a).
A further issue of concern is the discretion enjoyed by prosecutors. Chung Bong-ju,
former National Assembly member, was imprisoned in late 2011 after being convicted of
spreading rumors about Lee Myung-bak’s connection to an alleged stock fraud during the 2007
presidential election. He served a full year in prison despite strong legal criticism of the trial
(Cho 2012; Kim 2012). By contrast, Park Geun-hye raised the same issue of Lee’s possible
connection to stock fraud during the competition for the presidential nomination of the Grand
National Party in 2007 but was not investigated by the prosecution.
After the inauguration of Park Geun-hye as president in February 2013, these patterns
continued. A number of people who criticized her as a presidential candidate, her late father and
6former president Park Chung-hee, or her brother Park Ji-man have been investigated, detained,
fined, and indicted for false statements even when there is reasonable evidence that the claims
being made are in fact true (Media News 07-08-2013).
Abuse of the National Security Law
South Korea’s National Security Law, based on the colonial-era Japanese Law for
Maintenance of Public Security, was passed in 1948. The law subsequently became one of the
key legal instruments that the Rhee, Park and Chun dictatorships used to harass, jail, torture and
even execute the opposition.
Figure 2. Indictments under the National Security Law, 1985-2012
700
600
500
400
300
200
100
0
19851987198919911993199519971999200120032005200720092011
Source: Prosecution Yearbook, Republic of Korea, various years.
The most controversial section of the law is Article 7, which stipulates that “any person who
praises, incites or propagates the activities of an antigovernment organization…with the
knowledge of the fact that it may endanger the existence and security of the State or democratic
fundamental order, shall be punished by imprisonment for not more than seven years.”
Following a 1990 Constitutional Court ruling, the law was amended in 1991 to add the italicized
portion of the text to Article 7 to limit the arbitrary use of the provision. As Figure 2 shows,
neither the transition to democratic rule nor the amendment to the law resulted in major changes
in the level of prosecutions under it. But the number of people charged under the NSL fell
7sharply under the liberal governments of Kim Dae-jung (1998-2002) and Roh Moo-hyun (2003-
2007). Despite declining use, Roh Moo-hyun failed in his effort to abolish the law in 2004 as a
result of fierce conservative resistance. The trend reversed under the Lee Myung-bak
administration (2008-2012), however. The number of people indicted for NSL violations
increased from 34 in 2006 and 2007 to 91 in 2011 and 74 in 2012. Recently, the National
Intelligence Service was accused of fabricating evidence with respect to an alleged North Korean
spy after he was found not guilty by a lower court.
A lengthy report by Amnesty International (AI) shows that the law has not only been
associated with restrictions on freedom of expression but on related rights to association and
travel as well.
• With respect to freedom of association, a fringe leftist group, the Socialist Workers
League, was investigated under the NSL and AI shows how at least some lower courts
had serious doubts about the case.
• The NSL has also been used to curb academic debate on the study of North Korean issues
and access to North Korea-related materials. The law has resulted in the classification of
over a thousand books as being out of bounds, with the necessary apparatus of censoring
institutions. In an infamous case, a young satirist named Park Jeong-geun was sentenced
to 10 months in prison for online posts before the court acknowledged the satirical nature
of the posts and suspended his sentence.
• The NSL has also been used to control online debate on North Korea. According to the
Korean National Police Agency, the number of people prosecuted for pro-North Korean
online activities increased from 5 in 2008 to 51 as of October 2011 while the number of
domestic websites shut down for pro-North Korean content rose from 18 in 2009 to 178
in October 2011.” In addition, over 67,000 web posts were deleted by operators after
pressure from police in 2011 for praising North Korea and denouncing the U.S. and the
South Korean government; a sharp increase from 1,793 such deletions at the start of the
Lee administration in 2008 (Freedom House 2012b).
V. Restrictions on Internet Freedom
Korea is one of the most wired countries in the world, with an active and vibrant online
culture. However, regulatory measures such as a real-name registration system and increased
policing of online activities have presented challenges to internet freedom.
The ability of users to maintain their anonymity on the web is generally treated in the
advanced industrial states as a privacy issue outside the reach of the state; real-name registration
systems are more commonly associated with authoritarian regimes such as China than
democracies. However, Korea was one of the first countries to introduce such a system with its
Internet Real-Name Registration System in 2005. The real name system has been criticized by
8netizens, human rights organizations, and even the National Human Rights Commission of
Korea (NHRCK). Real-name registration also put the Korean government into conflict with
global service providers. When the scope of the law was expanded in 2009, the video-sharing
website YouTube’s U.S.-based parent company, Google, refused to comply. Rather, it advertised
that users could bypass the restriction by simply changing their location setting to “worldwide”
(Freedom House 2012a). The real name system under the Network Act was ultimately struck
down by the Constitutional Court in August 2012 but the real name requirements under the
Public Officials Election Act remains intact.
Content regulation is a second area in which South Korea has demonstrated a propensity
toward control. A false online communication was subject to criminal action even in the absence
of any person being defamed. An infamous case concerned the blogger Park Dae-sung (posting
as Minerva) who was indicted for “spreading false data in public with harmful intent” as the
financial crisis broke. In fact, his posts—which included predictions of the collapse of Lehman
brothers and a sharp fall in the value of the won against the dollar—proved to be true. Park was
subsequently acquitted and the Constitutional Court struck down the offending law but only after
the prosecution had sought an 18-month prison term in the case.
Because of restrictions in the law, South Korea requires regulators including the Korea
Communications Commission, a government agency operating directly under the President, and
the Korea Communications Standards Commission (KCSC). The KCSC conducts two types of
censorship based on the statute on unlawful information, including obscenity, defamation, and
threats to national security (Freedom House 2012a): technical filtering of websites and social
media accounts; and the administrative deletion of ‘unlawful’ content. The KCSC’s statistics of
the corrective measures show that it blocked 4,731 websites/pages and deleted 6,442 items in
2008, its first year of operation. In 2012, 39,296 websites/pages were blocked and 17,827 items
deleted. Critics have argued that these powers have been used to suppress criticism of the
government and high-level public officials. For example, “in May 2011, the KCSC ordered the
blocking of the Twitter account ‘@2MB18nomA,’ whose ID consists of the current president’s
nickname ‘2MB’ and a reference to a common Korean curse word” (Freedom House 2012a).
State Control and Influence over Media
There can be little question that the transition to democracy was associated with a shift in
the freedom of the media. Both print and electronic media proliferated and the private television
market expanded significantly as satellite broadcasting brought multi-channel commercial
television to South Koreans. Nonetheless, the state role in broadcasting remains significant. KBS
(which runs KBS2 as well), MBC, and EBS are public broadcasters, while only SBS is a
commercial broadcaster (although KBS2 and MBC run commercials).
State ownership of media immediately raises issues of governance: how to assure that the
state-owned media does not simply become a mouthpiece of the government. These issues
9increased in salience during the Lee Myung-bak administration. The Korea Communications
Commission (KCC) was established in February 2008; it replaced the former Ministry of
Information and Communication and the Korean Broadcasting Commission. The KCC consists
of five commissioners, with the president appointing two (including the chairman) and the
National Assembly choosing the remainder; this arrangement allows for the possibility that the
KCC will be completely dominated by the party in power and can thus influence the media
through a variety of channels including licensing and personnel decisions.
Choi See-joong, the first chairman of the KCC, was a close associate of the president.
During his chairmanship, the heads of various media outlets, including Korea Broadcasting
Station (KBS) and Yonhap Television Network (YTN), were replaced by supporters of President
Lee Myung-bak. Under the Lee administration, more than 180 journalists were penalized—either
through dismissal or other sanctions--for writing critical reports about government policies or
advocating press freedom. The president subsequently reappointed Choi as chairman in March
2011 over objections of opposition lawmakers. In January 2012, Choi resigned after prosecutors
began investigating him in connection with several bribery scandals.
The Lee Myung-bak administration and the KCC were also accused of favoring
conservative newspaper companies in the licensing of new general-programming cable television
channels. Amendments to the Newspaper Act and the Broadcasting Act passed unilaterally by
the ruling GNP in 2009 allowed investment by conglomerates and newspaper companies in the
broadcasting sector. Five new cable television channels—four general-programming and one all-
news channel—were launched in December 2011. As widely expected, each of the three major
conservative daily newspaper companies has now come to own and operate one of the new
general-programming cable TV channels (Freedom House 2012b, UN 2011).
The issue of politicization of media was not isolated to the KCC. The National
Intelligence Service was found to have systematically involved itself in the presidential election
campaign through web postings that denounced Moon Jae-in’s candidacy, a violation both of the
South Korean equivalent of the Hatch Act and of national election laws. NIS meddling in politics
was also suspected in the leak of the transcript of the Roh Moo Hyun-Kim Jong Il summit of
October 2007, in which the deceased president said politically controversial and potentially
damaging things about the Northern Limit Line, the de facto maritime border in the West Sea.
The transcript was used by the ruling party to tar presidential candidate Moon Jae-in as soft on
defense during the 2012 election campaign.
It is important to underscore that the problem of executive discretion with respect to the
media was by no means limited to conservative governments. Both the Kim and Roh
administrations took executive and legislative actions designed to weaken the conservative
media and particularly the Chosun Ilbo, JoongAng Ilbo, and Dong-a Ilbo, or the “Cho-Joong-
Dong.”. In the context of corporate governance reform of the chaebol during the Kim Dae-jung
administration, the JoongAng ilbo was constrained to separate itself from the Samsung Group.
But the Kim administration also implemented an unprecedented tax-audit of newspaper
10companies and subsequently filed criminal charges against five media executives. Although civic
groups and the majority of citizens polled viewed the case as an appropriate tax evasion matter
(Freedom House 2002), the opposition and some international press-freedom associations raised
questions about whether the actions reflected an effort to gag or intimidate the conservative
press.
The Roh Moo-hyun government also tried to weaken the monopoly of the conservative
newspapers. Roh replaced the press rooms at government departments with daily government
briefings. While the move was welcomed by smaller outlets that had previously been excluded it
was criticized by larger media outlets as an effort to limit their access to officials (Freedom
House 2004). The liberal Uri Party government also sought to reduce the conservative media’s
influence by invoking antimonopoly restrictions on dominant media outlets. The three major
daily newspapers, the so called Cho-Joong-Dong, ultimately challenged the constitutionality of
the law and the Constitutional Court determined that the law was contrary to press freedom
(Freedom House 2007).
Conclusions
The patterns described in the foregoing sections suggest two features of the South Korean
political environment. First, in spite of the fact that South Korea is considered a consolidated
democracy, freedom of expression has lagged countries with broadly comparable levels of
democracy, including Japan and Taiwan. Moreover, this was true even under the liberal
governments of Kim Dae-jung and Roh Moo-hyun. Second, freedom of political expression in
South Korea declined after the inauguration of the conservative Lee Myung-bak government in
2008. Possible explanations for these developments could include the persistence of authoritarian
values (for example Park and Shin 2006) and the persistence of laws inherited from the Japanese
colonial era. For example, the Korean treatment of defamation appears to have been directly
copied from Japanese law. Korea’s regulations on election campaigning were also copied from
the Japanese election law (Song 2005). The National Security Law was modeled on the Japanese
Law for Maintenance of Public Security.
However, we need a theory of reproduction; the fact that law was borrowed does not
explain why it persists. One obvious explanation is the enduring influence of the Cold War and
the division of the peninsula. This factor is clearly and directly germane to the abuse of National
Security Law and other practices of restricting freedom of expression in the name of national
security such as blocking of websites and deletion of web posts that contain pro-North materials.
The issue of how to deal with North Korea is an important cleavage in the South Korean
political system and its influence can be seen on these issues. The Grand National Party--led at
the time by Park Geun-hye—successfully blocked the Roh Moo-hyun government’s attempt to
repeal the National Security Law in 2004. Opinion surveys showed that those who opposed the
repeal of the NSL slightly outnumbered those who supported it. Conservative political forces
11were generally successful on focusing the political debate on policy toward North Korea rather
than on the issue of civil liberties. When North Korea announced its possession of nuclear
weapon in February 2005 and conducted the first nuclear test in October 2006, popular support
for the repeal of the NSL waned and when the Uri Party lost its majority the prospects for reform
of the NSL disappeared (Sohn 2011).
However, a simple comparison with Taiwan suggests that objective security
circumstances are not enough to explain these differences. Despite facing an equally if not more
daunting security challenge across the Taiwan Strait, a 2008 ruling by the Constitutional Court of
the Judicial Yuan effectively lifted any restrictions on freedom of association and speech
associated with communism (Justices of the Constitutional Court 2008). The court ruled that
value of protecting speech was seen as trumping any security risk and that the existing statute
“clearly exceeded the scope of necessity” and was “not in conformity with the purpose of
constitutional protection of people’s freedom to associate and freedom of speech.” Two small
communist parties subsequently registered themselves with the Ministry of the Interior and
became legally protected civic organizations.
A recurrent theme in the foregoing account is the fact that laws passed during the
authoritarian period provided incumbents of both parties with instruments they could use in
dealing with political opponents, including politicians, the media, NGOs and the citizenry more
generally. Moreover, the judiciary has not acted as an independent check on executive discretion.
This political logic can be seen by reviewing several of the areas discussed here.
The authoritarian regime did not need to use criminal or civil defamation because it had
plenty of other tools to censor the press and to suppress critics. Democratic governments on both
the left and right found these laws a convenient tool for managing opponents. Criminal
defamation actions actually rose sharply under the Kim Dae-jung government but have continued
to be a feature of the political landscape under conservative governments. While the
conservatives criticized Kim and Roh administrations’ use of criminal and civil defamation
actions as a threat to freedom of the press, the liberals remained silent on the issue thus blocking
the possibility of legal reform. While the liberals accused the Lee government’s use of criminal
defamation as politicized use of prosecutorial power and suppression of free speech, the
conservatives were silent about it and similarly enjoyed the political majorities to prevent legal
reform.
The shifts we see in freedom of expression during the Lee Myung Bak government also
reflect the ability of the executive to use a variety of instruments to manage the opposition
without effective National Assembly, judicial or media checks on that discretion. When the
government’s decision to import U.S. beef was met with large candlelight demonstrations, the
government abandoned a more forthcoming approach and stepped up suppression of critical
media reports, such as the “PD Notebook,” and online posts such as Minerva’s criticism of
government’s economic policy. These actions were also supported by the conservative media
which was a prominent critic of the softline approach to the opposition.
12Similar political forces are visible with respect to national security issues following North
Korea’s test of a nuclear weapon in 2006 and gradual shift in public opinion away from
engagement. The sinking of the South Korean warship Cheonan in March 2010 had a
particularly strong impact on public debate. After the Civilian-Military Joint Investigation Group
(CMJIG) announced that a North Korean torpedo attack was responsible for the sinking of
Cheonan on May 20, just two weeks before the June 2 local elections, critics raised questions
about the political motives of the timing of announcement as well as the conclusions of the
investigation. The government’s response to the questions and criticisms was not an open debate
but suppression, using criminal defamation charges to intimidate the opposition and increasing
control over media and social media content dealing with North Korea.
This political explanation begs the question of why executives are capable of exercising
such discretion, but the answers can be found in the limited restraints on the president and the
lack of judicial independence. The Constitution gives the president relatively strong powers vis-
à-vis both other branches of government. We have also noted the president’s power to appoint
regulators who may have conflicts of interest with respect to freedom of expression. Moreover,
since Korean presidents tend to exercise strong discipline within their parties, their power is
relatively unconstrained when the ruling party has a majority in the National Assembly. The first
two conservative presidents and two liberal presidents were partly constrained by divided
government at least for part of their presidencies. But Lee Myung-bak enjoyed a stable majority
during his entire term. President Park Geun-hye also will enjoy a stable majority at least until
2018, when the next National Assembly elections will take place.
Judicial independence is also implicated in a number of restraints on freedom of
expression we have outlined here. The prosecution has often been directly influenced by the
president and complaints about the politicization of the prosecution have risen, particularly under
the Lee administration. These problems continued under the Park presidency. When the
prosecution attempted to assert its political independence over the investigation of the National
Intelligence Service’s violation of election laws, the Park government pressured the prosecutor
general to resign. The courts have also been accused of lacking political neutrality because of the
president’s power to appoint justices. Ironically the Lee government emphasized the rule of law
by stressing that freedom of expression and assembly should be exercised within existing legal
constraints. However, as Chu and Im (2013) point out, this meant “relying on politicized judicial
institutions (courts and prosecutors) and justifying legal transgressions of civil liberties.” The
Lee government’s conception of the rule of law as a tool for the state to efficiently rule and even
control its subjects was thus very different from liberal constitutionalist conceptions, which seek
“to limit and constrain the power of the state in order to guarantee civil liberties”. If political
factors have been paramount in the decline of freedom of expression we have outlined here, a
key task moving forward is to constrain executive discretion and ensure judicial independence.
We conclude by citing John Stuart Mill’s argument for freedom of opinion and
expression, as it still constitutes the most compelling rebuttal against laws that restrict free
13speech. Mill’s argument had two parts. The first is that the views of dissidents and minorities
might be true; if so, they need to be articulated. But equally if not more important were Mill’s
arguments with respect to claims that are false. If widely held opinions are not debated, then they
run the risk of becoming “dead dogma.” Censoring the expression of opinions that are false
blocks the debate that shows—through reasoned argument—why such opinions are false. Mill
may be criticized for his faith in reason, but the fact that the South Korean public remains
divided on the issue of the NSL, criminal defamation, false campaign speech, and the other
issues raised here is largely irrelevant from a normative perspective. Majorities should not be
allowed to trump rights that are fundamental for the maintenance of liberal democracy.
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