Three Strategies for Fighting Criminal Defamation Laws (9/2013 Google Workshop post MLRC London)

I will mention three strategies we must pursue internationally to protect free speech in defamation cases.

Firstly, criminal defamation has been condemned by international human rights bodies for being abused by not so democratic rulers as pretexts for oppressing the opponents, especially using prosecutorial resources for free.  So, countries with safely democratic governments, say, European countries where criminal defamation originated from, have refused to get rid of criminal defamation laws since their prosecutors are supposedly more independent and will not be commandeered to suppressing speech critical of the incumbent governments.

I don’t care about what ruminations, meditations, reflections, European countries have about criminal defamation laws.  Please remove the laws, if you are not using them, for god’s sake.  As long as the laws are there, they are used to justify the existence of criminal defamation laws in other countries that look “up to” Europe, and in those countries, unlike
Europe, it is actually used to send people into incarceration for not agreeing with the government.  There was one 20 month period back in 2005-2007 when about 200 people were punished to incarceration for defamation, another 40 or so people in Korea were punished that way, accounting for 28% of all people.

In order to abolish criminal defamation laws, we should now make a straightforward argument against criminal defamation, not an argument based on the possibility of anti-democratic abuse because that argument is apparently not convincing European countries to actually abolish the law.  The European Court of Human Rights has overturned many guilty criminal defamation judgments on various grounds and I cite them to show our country  international repulsion against criminal defamation but none of them is fully satisfactory because none of them is categorically condemning the law.

Criminal defamation is usually justified by emphasizing the value of reputation and its importance to dignity.  Lord Lester at MLRC yesterday said that reputation is on par with free speech.  I do not believe so.  Reputation is what other people think of you. Reputation is in other people’s heads and under their control.  Reputation doesn’t belong to you as your limbs belong to you or as your private information belongs to you.  You cannot control or assume what other people think of you before the supposedly defamatory remark has been made.  No matter how well you behaved, people may have not thought nicely of you anyway for other reasons.  Having said that, shall we really apply criminal law against an injury, the existence of which is not as certain as an injury, say, to your limbs?

To illustrate my point by comparison, let me tell you that I fully agree with criminal prosecution of privacy breach.  People illegally wiretapping others whether they are police officers or not should be criminally punished for taking away what clearly belongs to others.  Reputation on the other hand does not belong to you the same way.

If outright abolition is difficult, add at least a provision that officials cannot claim for criminal libel for statements on what they did at work.  Why?  Because such criminal libel prosecution ends up becoming a service done by prosecutors to their fellow officials, throwing their fairness in doubt.  Susan at Google just mentioned that these days Korea is one of the 5 counties from which user data requests come supported by warrants.  Well, a lot of times, prosecutors are really making data requests on behalf of fellow officials who filed a police report complaining of criminal libel.

The case in point, back in March 2009, a documentary done by Number 2 station’s producers, PD Notes : Mad Cow Disease, in the country was criminally prosecuted for calling American beef dangerous when the agricultural minister declared the beef safe.  The crime charged?  Defamation. Wait a minute, for calling American cows dangerous?  Whose reputation was harmed?  The cows?

Well, the prosecutors in the classically abusive case forewarned by international human rights bodies concocted an argument that defaming cows actually defames the agricultural minister who thought the cows were okay.  Yes, the prosecutors were found not guilty through all three stages of the court.  But the fact of prosecution alone chilled all other broadcasters and television producers into silence for close to 5 years since then and till now.  No longer do we find television programs healthily critiquing government polices.  Abolishing criminal defamation at least as to the statements about public officials will have prevented such tragic series of events.

Secondly, the other important strategy we should pursue is to abolish truth defamation, i.e., a system whereby liability attaches even to a true statement. People always talk about sex videos to support existence of truth defamation.  Yes, we need a law criminally prosecuting a despicable ex-boyfriend for releasing a sex video with his girlfriend who now wants to leave him.  We can make a special law about that.  In Korea, sex video recorded or disclosed against the sex partner’s will is subject to liability.  Now, is that really a defamation law or a privacy law?  It is privacy law because your reputation is not lowered by the people coming to knowledge that you are having sex. It is not your reputation hurt but your privacy.  As I said before, I don’t have a problem with criminal privacy law, so I will even approve criminal punishment of such video.  Also, as many countries are adopting data protection laws under which privacy breaches are policed, abolition of truth defamation does not hurt.

A huge problem with truth defamation is that its existence distorts the burden of proof in favor of the prosecutor/plaintiff in falsity defamation cases, the staple of defamation litigation around the world.  If you will be held liable regardless of whether your statement is true or not, judges will be naturally not so strict about the plaintiff’s or prosecutors of burden of proving that what you said is false.  This lax standard is problematic because in most defamation cases it is usually the supposedly defamed party that has overwhelmingly more resources than the speaker/defendant in proving truth/falsity of a statement about him/herself.  Therefore, the defamed party or the
prosecutors can easily prevail on truth/falsity over the speaker/defendant (This problem was further compounded in Korea by the recent Supreme Court precedent that imposed something like a burden of production on the defendant on the truth/falsity), who then has to establish a reasonable basis for having the supposedly false belief, a difficult task for a person who just wants to raise a doubt on another’s secretly conducted behavior.

A case in point is that of Chung Bong-Ju, a politician who alleged that another politician Lee Myung Bak was involved in stock price manipulation of a company called BBK, who later became the President.  Once in power, Lee’s prosecutors indicted Chung for election-related criminal defamation.  Throughout the case, the court did not inquire into the truth of the statement and instead interrogated upon whether Jung had sufficient basis to say what he
said.  Jung, who merely wanted to cast doubt over Lee Myung Bak’s financial deals, was not prepared to produce a basis that the judge now equipped with the benefit of hindsight will find sufficient.

I suspect that this will be a problem for all countries that have truth defamation in their books.  It will corrupt the judicial process for falsity defamation cases.  Actually, it is already mindboggling that many of the European countries place the onus of proving truth on the speaker in falsity defamation cases.  But, I now suspect that it is the natural result of recognizing truth defamation: the presence of truth defamation tilts the burden of proof against the speaker in falsity defamation cases.

Thirdly, if you are from countries with “false news” provisions, please do not give up even if the speech you want to defend contains clear falsity.  There are a slew of international human rights law behind you that can back you up.  I want to introduce this case of Minerva in Korea who was not only acquitted of all the charges but also the false news law was struck down as unconstitutional.

Minerva was a then anonymous economic pundit whose blog obtained a huge following of hundreds of thousands of daily visitors in a pre-SNS age by, for instance, correctly predicting the downfall of Lehman Brothers.  He also criticized the government’s exchange rate policy, manipulated to give advantage of large cellphone and auto exporters such as Hyundai and Samsung at the expense of small to midsize companies, of course, to the wrath of the conservative politicians, who then called for a criminal investigation, for what crimes, only God knows.  In 2010, our creative prosecution forces did come up with a provision that in the days of Morse code criminalized assumption of false identity over electric(not electronic, I guess) communication, and turned it into the false news provision for which they charged Minerva.

How we won in 2010?  There were many but among them was that we made a strong constitutional argument.  We received the help not directly from Article 19 but from the case that Article 19 argued in Zimbabwe, also sadly but inevitabley the Canadian case of Zundel, the Holocaust denier.  Especially helpful was the Zundel decision that said even clearly false statements need be protected because no one knows ex ante what is clearly false.  “Rainforest activists should be allowed to oppose deforestation without fearing that they will be thrown into jail in the event that the effect of deforestation on global warming turns out to be false.”  We built upon that argument and argued that, what is important is usually important on account of the fact that there is not much information available upon it. Since there is not much information on that subject matter, people should be allowed to say things that later turn out to be false.  It will be different if someone’s reputation is immediately at stake but when there is no one being directly hurt by the speech, the full free market of free ideas should be allowed to function.  Again, I want to emphasize the importance of international human rights cases. Even if there is a false news provision, don’t ever give up on making an argument that the law itself is void under human rights.

Thank you for listening.