The status of disinformation regulation and the moves to strengthen regulation in South Korea 

The transcript of comment at the panel of RightsCon 2019, June 13

Jiwon Son, Open Net Korea  

Korean President Moon, and the current Korean government has been regarded as a progressive government since he was elected in 2017, following popular protests that helped bring down a corrupt and authoritarian government and the former Pres. Park. However, they are showing frustrating moves in terms of freedom of speech, as they have been attempting oppressive countermeasures to anti-governmental speech.

Last year Oct., South Korea government announced a sweeping crackdown on “Fake News”. On a cabinet meeting, the Prime Minister argued that the “fake news about sensitive policies, the President, and national security including its relations with North Korea cannot be tolerated any longer, as it is a public enemy of democracy”. After that, it has been revealed that the national police agency had been investigating 16 fake news that made rounds online. They include claims that Pres. Moon is showing signs of dementia, and that South Korea gave money to North Korea as payment for holding the summit. The ruling party launched a special committee to counter fake news online, and they visited Google Korea and requested that they delete more than 100 youtube videos including Moon’s health problems, and the suspicion of employment preference. The Justice Minister ordered state prosecutors to aggressively chase down people spreading ‘false, manipulated information’, be proactive in detecting fake stories and misinformation, and to push ahead with criminal investigations when needed, even when no one files a complaint. In the National assembly, there are currently over 20 pending bills related to fake news.

South Korea already has strong and overbroad regulations in place regarding the dissemination of false facts, which may result in the infringement of individual rights. Under the defamation law in Korea, one can be subject to imprisonment (even when the statements are true). There is an article called “Temporary Measure” which OSPs must take down posts that have been reported to infringe on individual rights for the duration of a month. It is reported that around 400,000 posts a year are being blocked by this system. According to the Election Law, publication of false information or just slander against candidates or their relatives is subject to criminal punishment. The election commission can also issue an order to delete such information. Under this system, it was reported that about 17,000 posts in the last Parliamentary election, and about 40,000 posts in the last presidential election were deleted. Using these laws to silence critics is old habits for Korean regimes. Under former Pres. Park and Lee, those who raised suspicion of their corruption were sentenced to jail for publishing false facts. However, the allegation they raised is gradually turning out to be true; so much so that Park and Lee have now been sentenced to time in prison over those corruption scandals.

The new disinformation regulation bills are about dissemination of false information that ‘interferes with social integration’, ‘disrupts social order or public interest’, regardless of whether it violates individual rights. The new bills usually establish strong criminal penalties for the dissemination of false information and impose monitoring and deletion duty on OSPs. The most powerful bill defines disinformation as “Information that the court or government agencies have determined to be not obviously true”.

However, in 2010, the Constitutional Court of South Korea already made its decision on the provision of criminal punishment for the dissemination of false facts that harm public interest to be unconstitutional. This provision was a restrictive legislation on the freedom of expression with criminal penalties and, therefore, is subject to the rule of clarity on a strict level. However, the “Public interest” used here is unclear and abstract, and hence it is in violation of the rule of clarity applied to the freedom of expression and criminal penalties.

In their supplemental opinion, they said, “Once people receive false communication, they are able to suspect the truthfulness of the matter and verify it. Further, thanks to the development of the Internet, the most participatory market and medium promoting expression, they are able to collect information in various channels and simultaneously raise objections to specific information….Further, we do not believe that expression of false information has concrete danger to obstruct citizens to acquire right information, encourage crimes, and cause social disturbance. Meanwhile, if there arises a debate resulting from the expression of false information, it will draw the public’s attention to the specific information and facilitate participation. Therefore, the false information does not necessarily harm public interest and the development of democracy. Even if one expresses false information with the intent to harm the public, one’s act does not necessarily create social harm if the expressed contents are such a personal matter that it does not influence the public interest or if the matter of truthfulness of the information is not the public’s interest…. The Instant Provision will deter the expression of those who are not sure their expressions violate the law when they seek the truth against the established fact and perspective…. As such, we suspect the necessity of State’s interference when the State prohibits and punishes false communication in a monatomic and guardianship manner with such an ambiguous and subjective element as ‘intent to harm public interest’ even if false communication does not result in societal harm per se. A certain expression, the worthiness of information, the harmfulness of the information should be measured by competitive mechanism of individual’s idea, opinion and the civil society’s self-corrective function not by a state.”

According to this decision, the new bills will also be found unconstitutional.

Although criminal penalties have been abolished, there is a system that can delete or block the online disinformation. KCSC (Korea Communication Standard Commission), administrative agency, has the authority to deliberate online contents and request that illegal or harmful information be deleted or blocked. Their standard includes “Distortion of history”, “Hate speech”, “Violation of social order, or inciting social unrest”.

“Violation of social order” is the most problematic clause. In the former administration, there were a number of cases where internet postings that raised suspicions about the facts announced by the government were deleted under this clause. In 2015, posts claiming that the National Intelligence Service (NIS) was involved in the Ferry sinking tragedy and the delay in rescue, and posts claiming that various North Korean provocations/attacks were not actually carried out by North Korea but were simple accidents or staged by the NIS were deleted. In 2016, the deletion of postings expressing dissent to THAAD (Terminal High Altitude Area Defense, American anti-ballistic missile defense system) deployment in South Korea, referring to the hazards of the THAAD, had been a big controversy. An administrative agency censoring people’s expressions based on an abstract and authoritarian concept is seen by many as an abuse of power to compel a totalitarian mindset, block criticisms of the state, and control public opinion. As such, there exists a rising concern that it is unconstitutional.

Fortunately, in the current administration, there have not been any decision to delete posts under this clause. This seems to be due to strong opposition from the civil society. It seems the government’s excessive moves toward fake news have also gradually slowed down, with the government being conscious of public opinion. However, I think that attempts to legislate strong regulation of disinformation will probably continue for a while.