Content-Type: text/html
Constructing 'Public Personage': A Strategy of
the Korean Press for a Safeguard against Libel Suits
by
Jae-Jin Lee
Doctoral Candidate
School of Journalism
Southern Illinois University at Carbondale
Carbondale, IL 62901
609 E Campus Dr Apt 401
Carbondale, IL 62901
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and
Jongbae Hong
Doctoral Student
School of Journalism
Southern Illinois University at Carbondale
Carbondale, IL 62901
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Submitted to Mass Communication & Society Division, AEJMC
ABSTRACT
This study examines how the Korean press tries to establish a safeguard to
protect itself from vindictive libel litigation by public persons. This study
analyzes discourses of major dailies that advocate the immunity of working
journalists from libel. This study found that there exist some discrepancies in
defining public personage between the courts and the press. While the Korean
courts have not yet defined who belongs to the public personage category, the
press keeps constructing the meaning of public personage as a shield against
libel actions.
Constructing 'Public Personage': A Strategy of
the Korean Press for a Safeguard against Libel Suits
Introduction
There is no doubt that the Korea press has been enjoying its "golden age"
due to the sweeping democratization that began at the end of 1987.[1] For the
last decade, Korean press had expanded to a great extent, at least before Korean
society was strongly struck by economic crisis in 1997. By the end of 1996, the
number of daily newspapers increased to 282, which is nearly ten times as many
as that in 1987.[2] Also, Korean press has been as free as to criticize the
government and report previously taboo issues, having no political and illegal
restrictions which were the case in the past.[3]
Although press freedom in Korea is a reality today, some scholars point out
that Korean press now faces different issues. For example, Kyu-Ho Youm observes
that press responsibility and ethics demand more attention than ever.[4] He
maintains that the long-lasting, problematic practices such as taking cash gifts
and forming press club systems should be abandoned because they are beneath the
dignity of the Korean press as a whole.[5]
From a similar perspective, Jae-Kyung Lee, noting how the process of political
democratization in Korea has affected increasing liberation of the media, argues
that the political reform was incomplete and left many restrictions on the
media.[6] In Lee's terms, journalistic freedom now in Korea is repressed by
recently emerged internal routines and outside pressure from the business more
than governmental or legal control.[7]
Along with Youm and Lee's findings, this study will argue that the so-called
'politically free Korean press' is in a vulnerable position when it is
confronted by libel litigation. More specifically, this study argues that
although Korean press is recognized as freer than ever, there is no legitimate
safeguard to protect the media from libel suits caused by false news report
about "public personage."[8]
This study examines how Korean press has been trying to construct the
meaning of "public personage" as a legal shield against libel actions. The term
"public personage" in this paper refers to a category of people whose activities
constitute public interests. Under the U.S. libel law, public personage,
although the term is not directly used, embraces public officials and public
figures who need to prove actual malice of the press to prevail in libel
actions. Thus, the main analysis will be conducted on newspaper articles and
court decisions in media-related libel cases. Before this, because the term
public personage used in this study originally came from the U.S. libel law,
this study briefly reviews how the concept of public personage has developed in
the United States. This will provide a substantial context to comprehend the
main ideas of this study.
This study sheds light on how Korean press exerts efforts to construct
public personage privilege by exploring three guiding questions. First, how the
media environment has changed since 1987 political reforms? Second, how
American media are protected from libel suits when the plaintiff belongs to
public personage category? Third, how Korean courts define public personage in
applying libel laws in relation to the media? Fourth, how Korean press defines
public personage in its own terms?
This study can contribute to a better understanding of the current libel
phenomena as a new issue that politically free Korean press should deal with in
order that it may become freer. This study is of importance because it can
provide some insights into the press in transitional societies from an
authoritarian to a more democratic stage.
Press Freedom and Recent Changes in Media Environment
Press freedom in Korean society has not been determined as much by the
availability of a constitutional commitment, or by the presence of a special
press statute, as by a particular political and legal culture. Thus, the search
for press freedom in Korea needs to focus on both on the forms of regulation and
on the political theories that underpin the system of regulation.[9]
The historical government-press relationship in Korea shows a combined
pattern of control and synergism. On the one hand, Korean press had been
restricted legally and politically during the last several decades.[10]
Dae-Kwon Choi argued that historically there was a huge disparity between the
constitutional guarantee of press freedom and its implementation. Despite the
constitutional warrant, the Korea press was often regulated and restricted by a
myriad of press-related repressive laws, including the Criminal Act, the
National Security Act, Anti-Communist Act, and the Basic Press Act. However,
Choi observed, the press had been more heavily suppressed by the political
actors and press owners than by press laws.[11] Thus, during the last three
decades, those forces including political and inner constraints often violated
the fundamental value of press freedom in Korean society.[12] On the other
hand, based on Rivers, Miller, and Gandy's perspective, Korean media's
relationship with the government or the political forces is "pendulant," not
fixed, swinging between "repression" and "intimacy."[13]
For these reasons, Korean media were regarded as being a speaker of the
political power, never being a watching dog on the abuse of power of the
government.[14] This situation can be more precisely explained by Siebert's
proposition. According to Siebert, the press in a sociopolitically troubled
society is supposed to undergo various and direct controls in the pretext of
building social stability, and that on the other hand, the more developed a
society, the more subtle become the controls it exerts on the press.[15]
For a long time in the history of journalism, the Korean rulers have not
valued press freedom as a political or civil right.[16] When the Korean courts
deal with a case of a political nature, judgments of the courts reflect
political influence.[17] Especially when the executive branch begins to assume
an increasingly authoritarian posture, court decisions on political cases are
strongly colored to defend the legitimacy of the government.[18]
The Korean rulers' lack of support for press freedom has imposed a
considerable impact on the judiciary's perception of press freedom. Reacting
sensitively to the issue of press freedom, the judiciary, whether it realized
the importance of press freedom in a democracy or not, has been reluctant to
display its own viewpoints on press freedom clearly. This attitude of the
judiciary lasted until the judiciary became more independent at the end of the
1980s.[19]
According to Youm, sociopolitically, Confucianism contributed to the emergence
of an authoritarian rather than libertarian government in Korea, and
statutorily, that press freedom guaranteed by the Korean Constitution was
frequently turned into empty words in its implementation. He stressed that
under authoritarian governments, some repressive laws such as the National
Security Act and Anti-Communist Act were often and effectively invoked to
restrict the Korean press. His findings succinctly illustrate how Korean press
was interrelated with the government.[20]
The relationship between the government and the media during 1980-1987 can be
characterized as total submission of the media to the government. Possibly all
types of media controls were invoked in the name of "national stability."[21]
Right after the Gen. Chun Doo-Whan seized power by the military coup in May
1980, he launched so-called "purification campaign" on the press, enforcing a
sweeping reorganization of the mass media.[22]
After the purification campaign, the Korean media had to undergo direct and
indirect censorship of the government. Further, the Chun government (1980-1987)
enacted the Basic Press Act in December 1980, which was known as "one of the
most restrictive and comprehensive law in capitalistic societies."[23] More
than anything else, it made the press's responsibility a legal requirement per
se.[24] The media had no choice but to "follow the government's instruction and
order, drumming up the achievement of the government, encouraging people towards
the economic plan and other government policies, promoting political leaders,
and conniving over at government corruption or failure of its policies."[25]
In June 29, 1987, Roh Tae-Woo, then the president candidate of the ruling
party, announced, "the government cannot control the press nor should it attempt
to do so. No restriction should be imposed on the press except when national
security is at risk."[26] Since this announcement, there has been a remarkable
relaxation of governmental controls on the press in comparison with the
situation in the past. Considering the rigid media environment in the past, Rho
Tae-Woo's reform was a turning point that brought the demise of authoritarian
rule over Korean media.[27] After that, censorship, which had lasted a long
time in Korea, was virtually abandoned.[28] The repressive Basic Press Act was
abolished in 1987. The press expanded the scope of its news coverage, ending
some formal and informal taboos on press coverage that had lasted several
years.[29] A law school professor observes that as the political system changes
from an authoritarian to a more democratic structure, the concept of press
freedom transformed from a passive right to an active right in Korea.[30] The
scope of press freedom has expanded as the Korean society developed politically.
A phenomenal change in the media environment after the political reform
proposal was the huge increase in the number of libel suits against the
media.[31] Traditionally, libel litigation against the media was very rare and
was not a "chilling threat" to the Korean media.[32] Confucianism had a great
influence on the lack of libel cases against the media in Korean society.
Koreans, who had long been educated to place harmony and conciliation before
legal warfare, tended to regard it as being beneath their dignity to seek a
remedy through the judicial process.[33] The late legal scholar Peong-Choon
Hahm observed:
To the Korean a litigation is a war_.A litigious man is a warlike man to
the Koreans. He threatens harmony and peace. He is a man to be detested. If a
man cannot achieve reconciliation through mediation and compromise, he cannot be
considered an acceptable member of the collectivity.[34]
Even though conflict, struggle, and legal resolution are the essence of the
Western man, Koreans had a tendency to avoid legal processes whenever possible.
For this reason, it is not surprising that libel litigation aimed to recover for
an injured reputation is very unusual in Korea.[35] Jae-Chun Yu, a Korean
journalism professor, observed that the legal and ethical issues facing the
Korean press are in part a result of the tendency of the defamed to forgo suing
the news media.[36] Therefore, the increase in libel actions during the last
decade indicates that the Korean media are no longer immune from the chilling
threat of libel litigation.[37]
"Public Personage" under the U.S. Libel Laws
Prior to 1964, defamation was a strict liability tort in most states of
America. The plaintiff neither needed to prove that the defamatory statement was
false, nor that he/she suffered any actual injury to reputation.[38] The
complainant just had to show that "the defendant was responsible for uttering or
publishing to another person a derogatory statement that would expose the
plaintiff to public hatred, shame or ridicule."[39] The defendant had to bear
the burden of proving that the statements were true or that he/she was entitled
to a conditional or absolute privilege.[40]
In 1964, the U.S. Supreme Court began to consider public personage within
constitutional laws. The actual malice standard, as set forth in New York Times
v. Sullivan, requires a plaintiff in a defamation action who is a public figure
or public official to prove that the defendant made the defamatory statements
with the knowledge of the falsity and reckless disregard of the truth.[41] The
public personage plaintiff is required to prove actual malice with clear and
convincing clarity.[42]
In forming the actual malice standard, the Court has developed a national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open. The Court reasoned that erroneous statements are
inevitable and must be protected if the freedoms of expression are to have
"breathing space that they need_to survive."[43] It held that "the right of
free public discussion of the stewardship of public officials was...a
fundamental principle of the American form of government."[44]
The Court further held that Sullivan could not recover for the defamatory
falsehood unless he proved that the statement was made with "actual malice."[45]
In this case, actual malice was defined as "knowledge that a statement was false
or with reckless disregard of whether it was false or not."[46] As a result,
the actual malice standard made it difficult for a public official to recover
for alleged libel without proving the defendant knew the challenged statements
were false or that he/she acted with reckless disregard as to their truth or
falsity.[47] It was a great departure from traditional common law. The Court
reasoned that a strict liability standard could chill the freedom of speech
because publishers wary of sanctions would not publish certain stories.[48]
The Supreme Court extended actual malice doctrine to "public figures" in Curtis
Publishing Co. v. Butts[49] and Associated Press v. Walker.[50] These two cases
continued the Court's constitutionalization of state defamation laws. Criticism
of public figures could no longer be curtailed without violating the First
Amendment. Actual malice doctrine was extended even further in Rosenbloom v.
Metromedia, Inc.[51] In Rosenbloom, a plurality of the Court applied New York
Times' actual malice protection to all speech concerning any libel plaintiff
involved in a matter of public concern, regardless of whether the plaintiff
would otherwise qualify as a public figure or official.[52]
Later, the Supreme Court determined that the actual malice standard was too
high a burden for defamed private plaintiffs to satisfy. In Gertz v. Robert
Welch, Inc.,[53] the Supreme Court specified who would be considered a public
figure and thus subject to the Sullivan standard. In this case, a public figure
was defined as either a person of widespread fame or notoriety or a person who
injected himself/herself into the debate about a controversial public issue with
a view to affecting the result.[54] The Court held that because private figures
deserve more protection than public figures, states could allow private figures
to recover under some form of liability with a standard of proof higher than
strict liability, but lower than actual malice.[55]
The public figure designation may rest on either of two alternative bases.
In some cases, an individual may achieve such pervasive fame or notoriety that
he becomes a public figure for all purposes and in all contexts. More commonly,
an individual voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues.
In either case, such persons assume special prominence in the resolution of
public questions. The Court reasoned that unlike public figures, private
figures do not have the access to the channels of communication required to
challenge defamatory remarks.[56] Further, the Court said that private persons
have not voluntarily exposed themselves to public scrutiny and comment.[57]
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,[58] the Supreme Court
held that the First Amendment protects only speech of public concern. Here, the
Court applied a balancing test to weigh a state's interest in compensating
private individuals for injury to their reputation against an individual's First
Amendment right of expression.[59] Speech about private matters, the Court
stated, do not enjoy full constitutional safeguards.[60] This case restricts
actual malice to cases in which the plaintiff is a public figure and the
contested statement is a matter of public concern.
Likewise, in Philadelphia Newspapers, Inc. v. Hepps,[61] the Supreme Court held
that in order to ensure that "true speech on matters of public concern is not
deterred," the plaintiff holds the burden of proving falsity at least in cases
where the speech was of public concern.[62]
As far as the actual malice doctrine is concerned, as Sullivan and its progeny
indicate, the standard of fault varies according to the status of the plaintiff
and the nature of the defamatory speech involved. If the plaintiff is a public
official or public figure, he must demonstrate that the defendant actually knew
the statement was false, or entertained serious doubts as to its accuracy. If
the plaintiff is a private figure, he/she must at least prove that the defendant
was negligent in order to collect damages. The Court ruled that public figure
includes "celebrities" who are widely recognized by the public or those who are
involuntarily or accidentally involved in the high profile incidents.[63]
The concept of public figure under libel law is crucial for the media
because it provides the media with breathing room in possible libel suits. The
rule that public figures should prove "actual malice" to prevail in the suits
leads press freedom to a "preferred position" to other civil rights.[64] In
other words, the U.S. courts have steadily expanded the ambit of protection to
the point that today the privilege extends to anyone enmeshed in the discussion
of a public issue, whether he or she is a public official, a public figure, or a
private citizen who has involuntarily become newsworthy.[65] After all, public
personage has been conceived as an indispensable factor that enables the media
to enjoy a preferred status under the First Amendment. Public personage under
the U.S. libel laws is the major safeguard against dangerous libel suits. It
gives the press more freedom to criticize public persons with less fear of being
sued for libel.
"Public Personage" under the Korean Libel Laws
A society's libel laws represent a commitment to protect the good name of the
individual against insult and scurrilous attacks.[66] They provide a means for
individuals to obtain vindication and compensation for reputational harms.[67]
A distinctive feature of Korean libel laws is that they have developed with no
consideration about the importance of press freedom because the Korean press was
historically restricted by the government.[68] Unlike the U.S. libel laws,
there is no privilege for the media from being punished for erroneous news
reporting about public personage.[69] Rather, the media should be cautious in
criticizing and commenting such public people as politicians, business leaders,
and socially influential figures, unless the media want to end up with libel
suits from them.[70]
In this regard, Merrill and two colleagues observed:
In the United States, the press may criticize any public official
(including the President) and often does so -- at times caustically; in Korea
the press must be extremely careful of any journalistic barbs cast in the
direction of the government.[71]
Although freedom of the press is guaranteed by the Constitution in Korea,
it should be reconciled with other social interests. Article 21 (4) of the
Korean Constitution provides that "[n]either speech nor the press shall violate
the honor or rights of other persons nor undermine public morals or social
ethics."[72] It also requires that the media compensate for damages to the
reputation of other people.[73] Furthermore, Article 16 (1) of the Periodicals
Act states:
Any person who is injured by a factual assertion published in a periodical ...
may request in writing and insertion of a corrected report to the publisher or
editor within fourteen days after it is published, in case of daily newspapers
or communication, and within one month, in case of other periodicals.[74]
It is notable that these provisions underscore the social responsibility of
the press. The emphasis on the social responsibility makes press freedom
somewhat antithetical to that of the First Amendment of the U.S. Constitution.
The social responsibility provision for the press stayed unchanged in the 1987
amendment to the Constitution.[75]
The Korean Supreme Court, in a libel case, affirmed its basic stance for
the press freedom and reputational right. The Court stated:
While freedom of speech or of the press should be provided with possibly
full protection in a democracy, individual rights such as reputation and privacy
should be ensured as well. Therefore, when mutually competing interests come
into conflict, the resolution should be reached by considering which interest
should be given more protection for the realization of social justice and
welfare.[76]
According to this statement, the Korea Supreme Court intended to balance
competing interests by considering whose interest is more beneficial to the
realization of "social justice and welfare."[77] This means that individual
circumstances determine which of the two conflicting interests wins the greater
protection.
The Court in this case employed a balancing test to resolve libel
conflicts. The fundamental logic of this test is that press freedom is not an
absolute but a relative right that should be balanced with other interests.
However, as Melville Nimmer observes, this kind of stance does not present any
definitions or standards for guidance and does not offer any predictability for
the parties involved in disputes.[78] This ambiguous stance by the Supreme
Court tended to make libel issues more complicated. Above all, the media could
not find guidelines to turn to when they encounter public personage in libel
litigation.
No Korean statutes indicate that constitutional privilege is endowed on the
media.[79] A Korean court once presented its perception about public personage
in drawing a line between the public interest and private interest. The court
here established three standards for the media to be careful in reporting
possibly defamatory stories. The court said:
To decide if the alleged story in the media is defamatory should be grounded
on whether the plaintiff is public personage, the story is true, and the story
is related to public interests. In other words, it should be decided in
consideration of the status of the plaintiff (public or private person), media's
effort to discover the truthfulness of the story, and the nature of the story in
relation to public concern.[80]
Despite this announcement, the Korean courts have not yet made clear
definitions about public personage. The Korean courts, that is, have not
specifically elaborated on who are public personage and how public personage is
considered in libel litigation.
Nevertheless, it is possible to grasp how the courts perceive public personage
by looking into a few court cases. The Seoul High Court, in Choong-Moo Sohn v.
Pusan Ilbo, held that the plaintiff, a publisher of a monthly magazine, was a
public figure and thus, the story should be considered as related to public
interest.[81] In this case, the court ruled that the stories in which public
figures or public officials are involved meet the requirement of public
interest.
The Seoul Civil District Court , in another case, ruled that the story
concerned a reporter's opinion about a public figure rather than factual
statement was not subject to the corrected report. [82] The court held that an
opinion which was based on existing official record of a courthouse, is exempt
from the burden of corrected report as long as it is related to "public
interests" and not clearly contrary to substantial fact.[83]
In MBC Union v. Dong-A Ilbo,[84] the Seoul District Court held that even
derogatory reviews or comments are justifiable as long as they are concerned
with matters of "public interest" -- regardless of whether they are "objectively
proper."[85] This case began when Dong-A Ilbo published a story and an
editorial about the sit-in strike by the labor union of the Munhwa Broadcasting
Corporation in Seoul in September 1989. The strike was related to a dispute
between management and labor of the broadcasting company.[86] The court stated:
The comment should not be an exposure of an individual's private life
unrelated to his public activities or an attack on his personal character.
Further, the opinion about him need not be objectively correct and is lawful if
it is subjectively believed to be appropriate. Even though the comment is not
neutral, and is so partisan as to be one-sided, or the words and tone are
violent and harsh enough to damage its subject in his social esteem, it cannot
be dismissed as unfair.[87]
In a libel case involving a well-known National Assemblyman named No Mu-Hyun,
the Seoul District Court ordered a newspaper defendant to publish a notice on
the court's decision and awarded 30 million Won (approximately $25,000) in
damages to the plaintiff.[88] The case arose when Chukan Chosun weekly claimed
that the plaintiff was not a human-rights lawyer of such high integrity as to be
known to the general public. Contrary to his image as an honest spokesman for
laborers and peasants, the story asserted, he was engrossed in making money in
an unethical way. Furthermore, the story added that he was very committed to
yachting, which was not consistent with his image as a man of integrity working
for the poor. The media defendant claimed that the story was related to a
public figure and was published for the public interest.[89]
Here, even though the court agreed that the story was for the public interest
and was directly related to the activities of the plaintiff as a public
official, the story was not substantially true and conveyed a false image of the
plaintiff. As a result, the media defendant was not exempt from liability.[90]
In brief, the Korean courts seem to put particularly heavy weight on whether
defamation was true and related to public interests, rather than on the status
of the plaintiff. In other words, the Korean courts did not define public
personage in functional terms. The lack of a definition of public personage
would carry the danger of driving the press to a vulnerable position if the
issue concerned is related to private interests.
It appears that the Korean courts have not yet presented consistent and
clear-cut definitions about public personage in relation with the coverage of
the press. Due to the lack of a definitional approach, the Korean courts seem
to have failed to provide specific guidelines the press can use to determine it
will win or lose.
A Korean legal scholar and lawyer attempted to draw a line between public
person and private person.[91] He divided 'public personage' under the Korean
law into five possible categories: 1) political actors, 2) public officials, 3)
public figures, 4) business and social group leaders, and 5) celebrities. He
claimed that there are two reasons a person would be categorized as a public
personage. First, he said, a public personage has more power to access to the
media. Second and more importantly, activities of a public personage are
directly interrelated with public interests in our society.[92] Therefore, he
noted that people in the public personage category should be aware that they are
not as well protected in libel cases as are private persons. However, he
suggested that the press should be alert so as not to violate the privacy of a
public personage when they report about him/her.[93]
"Public Personage" as a Shield for the Press
The term "public personage" did not appear in the media until early in the
1990s. Although the concepts of public official or celebrities had existed
before, the concept of public personage as a legal meaning was not used in the
media. The analysis of media's construction of the meaning about public person
should begin with the libel suits where two very popular female novel writers
sued national monthly magazines for revealing details of their private lives.
In a comment about these incidents, a leading Korean daily argues, "those people
who are in the category of celebrity should tolerate some revelation of private
lives in the media because readers are eager to know them."[94]
A few months later, a journalist in a progressive daily was arrested for a
false report about an ongoing bribe investigation of the then secretary of the
Department of National Defense. The secretary promptly sued the journalist for
libel under the Criminal Code, and as a result, the journalist was put behind
bars the following day. The arrest of a working journalist for libel fueled the
press's desire for safeguard to prevent journalists from being sued by a public
persons. The press, unanimously criticizing the government's harsh treatment on
the reporter, repeatedly emphasized that then the secretary of the Defense
Department was a public official.
After the incident, the press began to enhance the level of efforts to
construct the public personage as a protector from libel litigation.
Kyung-Hwang Shinmun comments:
Because the alleged news article was about public person and the erroneous
reporting resulted from journalistic activities in connection with the ongoing
investigation, it should have been more carefully considered whether there was
any intention to impinge his reputation.[95]
Similarly, Joonang-Ilbo writes:
Columnist Simon Jenkins claimed that since public officials who are pursuing
honors and reputations are a crucial part of public concern, they should
withstand some false news reporting when it is made in relation with their
public conduct on duty. The activities of public officials are directly
connected to the public concern. Thus, if the reporting is about public person
and it was written for public interest, it would not be punished in Western
societies.[96]
Interestingly, a newspaper says that a working journalist is a public
personage. An editorial by Dong-A Ilbo maintains:
The immediate arrest of the working journalist for the libelous news about
public personage is definitely erroneous considering that the journalist is a
public person who has less probability of evidence destruction or escape.[97]
The Korean media see the concept of public person as public officials who have
influences on decision-making processes. The press claims that the news
reporting about a public person, even though the alleged news article was
written on the basis of rather unclear evidence, should be exempt from being
punished for reputation injury.
The media's discussion about public person as a legitimate shield from the
libel suits was enormously stimulated when the second son of President Kim
Young-Sam sued Hangyure Shinmun for defamation. In this case, the Seoul High
Court ordered the newspaper to pay an unprecedented amount of money for
damages.[98] Even though the case was finally resolved outside the court after
the plaintiff retracted the suit when the newspaper promised to publish a reply
statement, the Korean press began to push harder than ever for a definition of
public personage as libel privilege.
In response to the case, a commentator states in Hangyure Shinmun:
The plaintiff, as the son of the president in power, is an all-purpose public
person. Thus, the news reporting, comments, opinions, and criticisms on him
should be allowed more broadly than those on non-public figures _ It is hard to
believe that the alleged news article reported totally wrong stories about the
plaintiff's money-taking considering the potential influence of the plaintiff as
a public figure.[99]
In the same vein, Media Today, a weekly, points out:
The plaintiff is absolutely a public person in that he was well know among
Korean people and he played a substantial role for his father during the
presidential election campaign. Moreover, the story that the plaintiff took
some money for a political purpose is the core of public concerns.[100]
In case of Hangyure Shinmun, it invited some media scholars to write:
The plaintiff is a pure public person whose life and activities naturally
attract public's eyes. As most people are interested in the private life of
Princess Diana of Great Britain, it is of no doubt that his every movement is
supposed to be a target of media coverage.[101]
He is definitely a public person as the son of the man in power. Thus, it is
out of question that the libel laws, when "public person" is involved, should be
applied differently from when non-public person (private person) is involved.
[102]
Everybody knows him. He was deeply involved in the presidential election. He
has been known as influential in politics. His whereabouts have always been the
number-one concern after his father was elected as president. Korean citizens
have no doubt he still has potential influence. _ Therefore, he is a core public
person.[103]
The press began to construct the meaning of public figure by focusing on a
person's "perceptional popularity" and "sociopolitical influence" in conjunction
with his/her social status. To put it differently, first, the press details who
belongs to the public personage category. Then, the press emphasizes that
libel law should be differently applied when a public person is involved in a
libel action.
The press continues:
Some legal scholars maintain that private lives of public officials and public
figure should be regarded in the area of public interest. Accordingly, they
have to recognize that their rights are more narrowly protected than private
figures. Even though it is controversial, legal scholars generally accept
that so-called public person such as public officials and celebrities are less
protected from the infringement of privacy.[104]
As far as public interest is concerned or there is substantial probability to
believe that the alleged story is related to public interest, journalists who
are responsible for the story should not be charged. _ Similar to the U.S. libel
laws, the concept of public personage should be applied not only to political
actors but also to college professor, football coach, TV talents, and movie
stars. Hence, the revelation of private lives of the public person in the media
should at least be exonerated from penal punishment.[105]
After defining who is a public person, then, the press intends to present a
standard to determine to what extent the coverage of the public personage should
be allowed. The press argues that because the private lives of a public person
is socially-shared information, the press should be protected publish that
information without fear of being sued.
As the last stage, some newspapers have elaborated on shoulds and
should-nots for a public person:
Forgetting that she as a television star is a public person, her disorderly
behavior (drunken driving) morally disappointed her fans.[106]
Recent traffic accidents where a popular TV talent and a pro basketball
player were arrested for driving their cars under the influence of alcohol
stunned our society. Our society should keep an eye on them because they
deviated the least rules and mores they should keep as public persons. The
name value of 'star' is not maintained only by their talent. There were so many
stars who turned their fans off by failing to behave themselves.[107]
As the importance of the 'public personage' and the media gets valued more
and more in our society, regardless of who they are, it is needed for public
persons to have appropriate spirit and consciousness to their status.[108]
A series of recent incidents caused by public persons make people deeply
concerned. Whether they like it or not, public persons who are the main actors
in the socially influential media should live up to their social responsibility.
For this reason, public persons should discipline themselves with austere
responsibility-consciousness.[109]
The Korean press tries to establish a moral standard for public persons to
follow by stressing such words as "consciousness," "morals," or
"responsibility." To put it differently, the Korean press appears to present a
frame of thinking about how public persons should behave in the society. A more
interesting thing is that the press places heavier responsibility to society on
public persons than on private persons. Considering that there has not been a
socially-shared sense about public personage in Korean society, the present
strategy of the press is unprecedented in its history. This strategy of the
press seems to be carried out through the repeated representation of public
personage on the basis of its own definition.
Conclusion
The main objective of this study was to explore the Korean press's strategy to
establish a safeguard to protect itself from vindictive libel suits caused by
public persons. For this, the study analyzed discourses in news articles,
editorials, and columns that advocate the immunity of working journalists from
being sued when the story is about public persons and public interests.
This study found that first, there exist some discrepancies in defining public
personage between the courts and the media. While the Korean courts define
public personage as an element of public interest that needs to be met by the
media to be exempt from defamation charge, the Korean media try to establish
the concept of public personage as a similar privilege as that in the U.S. libel
law. Second, whereas the Korean courts are reluctant to permit the press to
cover the private lives of public persons, the press maintains that all the
aspects of public persons' lives are under the scope of the coverage because
people would like to know them. Third, the Korean courts have not yet
considered public personage when deciding the plaintiff must prove actual
malice. Whereas, the Korean media have kept describing public personage as a
legitimate safeguard against libel action. Finally, the press tries to present
the ethical standard of the public personage in Korean society.
Given the fact that the media were almost immune to the threat of libel
litigation at least until 1988, the recent efforts of the Korean press for a
safeguard indicate that the libel milieu in Korea have changed profoundly. In
other words, while the Korean press is now free from political suppressions,
libel litigation is a troubling issue that the Korean press now face.
Conclusively, the Korean press's efforts to construct the meaning of public
personage as a protector will continue until the courts realize the need for
protection on the press from the libel threat based on the importance of the
media in Korean society. However, whether or not the press's efforts succeed
will be determined by how best the Korean courts judicially interpret the
constitutional meaning of press freedom in accommodating the individual's
interest in reputation and the media's interest in unrestrained debate of public
issues.[110]
[1] Jon Vanden Heuvel & Everette E. Dennis, South Korea, in The Unfolding
Lotus: East Asia's Changing Media 3 (1993).
[2] Korean Press Institute, The Korean Press 1997 125 ( 1997).
[3] Heuvel & Dennis, supra note 1, at 10.
[4] Kyu-Ho Youm, South Korea's Experiment With a Free Press, 53 Gazette 111
(1994).
[5] Id.
[6] Jae-Kyung Lee, Press Freedom and Democratization: South Korea's
Experience and Some Lessons, 56 Gazette 135 (1997).
[7] Id.
[8] The 'public personage' as a legal term had been hardly used before the
1990s.
[9] Pnina Lahav, Mass Media Law in Modern Democracies: A Comparative Study
263 (1985).
[10] Dae-Kwon Choi, Eonron Gwa Sahoi [The Press and the Law] , 11 Bophak
[Seoul Nat'l U. L. Rev.] 13, 17-9 (1981).
[11] Id.
[12] Id. at 16.
[13] W. Rivers, S. Miller, and O. Gandy, Government and the Media, in
Political Communication: Issues and Strategies for Research 217 (Steven H.
Chaffee ed., 1975).
[14] The control of the Korean government on the media includes all forms of
formal and informal techniques and processes - legislation, licensing,
regulation, judicial rulings, the issuing or withholding of information, and
officials' threats and pressure. Id.
[15] Frederic S. Siebert, Freedom of the Press in England 1476-1776
10-11(1952).
[16] Raymond D. Gastil, The Comparative Survey of Freedom, Freedom at Issue,
Jan.-Feb. 1983, at 5.
[17] Dae Kyu Yoon, Law and Political Authority in South Korea 111 (1990).
[18] Id. at 112.
[19] Id.
[20] Kyu-Ho Youm, Freedom of the Press in South Korea, 1945-1983: A
Sociopolitical and Legal Perspective 32-37, 129 (unpublished Ph.D.
dissertation., Southern Illinois University-Carbondale, 1985).
[21] Robert E. Bedeski, The Transformation of South Korea: Reform and
Reconstruction in the Sixth Republic Under Roh Tae Woo, 1987-1992 27 (1994).
[22] Kyu-Ho Youm, Press Law in South Korea 13 (1996). More than 700
journalists were fired under the pretext of being incompetent or
anti-government. About 172 dailies, including several highly acclaimed opinion
journals, were shut down because they created social confusion. Six private
major news agencies were merged into one. All the broadcast media came into the
ownership of the government See Jin-Sok Jung, The South Korean Press, in Korea
Briefing, 1992 (Donald N. Clark ed., 1992); Jae-Won Lee, South Korea, 1 World
Press Encyclopedia 585 (1982).
[23] Youm, supra note 4, at 14.
[24] Article of 3 of the Basic Press Act stipulated: (1) The press respect
and value of human beings and the basic democratic order; (2) The press shall
perform its public duties by contributing to the formation of democratic public
opinions concerning matters of public interest by means of news reports,
commentary, and other methods; (3) The press shall not infringe upon the
personal honor or rights of an individual, or public morality or social ethics;
(4) The press shall not encourage or praise violence and other illegal actions
which disrupt public order.
[25] Byung-Soo Lee, Press Freedom During Korea's 5th and 6th Republics, 1
Sungkok Journalism Rev. 15, 24 (1990).
[26] Kwon-Sang Park, The Press in South Korea, in The Unfolding Lotus: East
Asia's Changing Media 13 (Jon v. Heuvel & E. Dennis eds., 1993).
[27] Bedeski, supra note 21, at 15 (arguing that the changes in Korea were
sparked by the need to revise relation between government and society, to
respond to changes in international relations, and to adapt to news conditions
in the international economy).
[28] Youm, supra note 4.
[29] Id. at 112.
[30] Nak-In Sung, Eoroneui Sahoijuk Chaekim Gwa Eonron Jungjai Jedo [Social
Responsibility of the Press and Press Arbitration System], 14 Bopgwa Sahoi [Law
and Society] 6-37 (1997).
[31] A total of 198 media-related libel cases appeared between 1988 and 1996.
It is nearly four times as many as that between 1945 and 1997 (The number of
media-related libel suits during this period was 50). The number of cases is
based on Panrae Chongram [A General Digest of Court Cases] and Press Arbitration
Yearbooks (vol.1-16).
[32] Kyu-Ho Youm, The Libel Laws of the Republic of Korea, 35 Gazette 195
(1986).
[33] Won-Soon Paeng, Eonron Beopje Shinron [A New Theory of Mass Media Laws]
101 (1989).
[34] Peong-Choon Hahm, Korean Jurisprudence, Politics, and Culture 117
(1986).
[35] Hamid Mowlana & Chul Soo Chin, Libel Laws of Modern Japan and South
Korea are Compared, 48 Journalism Quarterly 326, 330 (1971); Kyu Ho Youm, Libel
Law and the Press in South Korea: An Update, 1 Contemporary Asian Studies Series
1, 2 (1992).
[36] Jae-Chon Yu, Hankuk Eonron kwa Eonron Munhwa [Korean Press and its
Culture] 171 (1986) (Korean).
[37] Jae-Jin Lee, Social Changes and Libel Laws in Korea: A Critical Review,
8 Sungkok Journalism Rev. 85, 118 (1997).
[38] R. A. Smolla, Law of Defamation 1.03[1] (1994).
[39] Symposium, Values in Conflict: Twenty-Five Years After New York Times v.
Sullivan, proceedings of the First Annual Symposium of the Constitutional Law
Resource Center, Drake University Law School, Mar.30-31, 1990, at 11.
[40] Id.
[41] New York Times Co. v. Sullivan, 376 U.S. 254, 255 (1964).
[42] Id. at 267.
[43] Id. at 275.
[44] Id.
[45] Id. at 280.
[46] Id.
[47] Id. at 279-82.
[48] Id. at 279.
[49] Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
[50] Associated Press v. Walker, 388 U.S. 130 (1967).
[51] Rosenbloom v. Metromedia, 403 U.S. 29 (1971).
[52] Id. at 43.
[53] Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
[54] Id. at 325.
[55] Id. at 347.
[56] Id. at 345.
[57] Id. at 344.
[58] Dun & Bradstree, Inc. v. Greenmoss Builders, Inc, 472 U.S. 749 (1985).
[59] Id. at 757.
[60] Id. at 759.
[61] Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
[62] Id. at 777. Justice Stevens, for the dissenters, said that as long as
publishers are protected by the fault requirement, "there can be little basis
for a concern that a significant amount of true speech will be deterred unless
the private person victimized by a malicious libel can also carry the burden of
proving falsity."
[63] See Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1974); Reliance
Insurance Co. v. Barron's, 442 F.Supp. 1341 (S.D.N.Y. 1977).
[64] Frederick Schauer, Social Foundations of the Law of Defamation: A
Comparative Analysis, 1 Journal of Media Law and Practice 3, 3-4 (1980).
[65] Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America
70-73 (1988).
[66] Schauer, supra note 64.
[67] Douglas W. Vick & Linda Macpherson, Anglicizing Defamation Law in the
European Union, 36 Va. J. Int'l L. 923, 933 (1996).
[68] Youm, supra note 32, at 193.
[69] The Korean government has long stressed the media's responsibility for
the reputational harm resulting from the reporting of public interest. For
instance, in 1970 the Minister of the Department of Justice announced that even
if the press published a speech given in the National Assembly, if the contents
of the story harmed public welfare or social order, the reporter could be
subject to both criminal and civil punishment. Korean Journalists Association,
Interview, 1 Kija Hyuphoibo [Journal of the Korean Journalists Association] 1
(1970).
[70] Jae-Jin Lee, Social Changes and Libel Laws in Korea: A Critical Review,
8 Sungkok Journalism Rev. 85, 98 (1997).
[71] John C. Merrill et al., The Foreign Press: A Survey of the World's
Journalism 264 (1970).
[72] Korean Const., art. 21 (4).
[73] Id. The media's liability for reputational injury was first recognized
by the Constitution of the Chun Doo-Whan Government (1980-1987).
[74] Periodicals Act, art. 16 (1). See also Broadcasting Act, art. 41 (1) &
Cable Act, art. 45 (1).
[75] Korean Const., art 21 (3).
[76] Il-Jae Lee v. Hakwonsa, Supreme Court, Oct. 11, 1988, Daka 29, reprinted
in Kungnae Eonron Kwankye Panraejip [Collections of Press Cases], vol. 3 (1990),
at 224-28.
[77] The principle of the Supreme Court seems to be in accordance with Korean
Const. art 37 (2), which states, "Constitutional rights of citizens may be
restricted by law only when necessary for national security or for public
welfare. In such situations, no essential aspect of the freedom or right shall
be violated."
[78] Melville Nimmer, Nimmer on Freedom of Speech 2-10-2-11 (1984).
[79] In Korea, the codes are the fundamental basis for judicial decisions.
In practice, however, Korean courts are strongly influenced by case law,
especially decisions of the Supreme Court. Introduction to the Law and Legal
System of Korea 16-19 (Sang-Hyun Song ed., 1983).
[80] Joongang-Ilbo, Nov. 27, 1993, at 13.
[81] Choong-Moo Sohn v. Pusan Ilbo, Seoul High Court, 95 Na 41965, September
18, 1996, reprinted in 16 Eonron Jungjai [Press Arbitration Quarterly] 181-84
(Winter 1996).
[82] National Reunification Alliance v. Seoul Shinmun, Seoul Civil District
Court, Nov. 26, 1992, 92 Kagi 649, reprinted in 47 Eonron Jungjai [Press
Arbitration Quarterly] 153, 153-158 (1993).
[83] Id. at 156.
[84] MBC Union v. Dong-A Ilbo, Seoul District Court (South Branch), Oct. 12,
1990, 89 Kahap 18505, reprinted in 38 Eonron Jungjai [Press Arbitration
Quarterly] 164, 164-171 (1991).
[85] Id. at 171.
[86] Id. at 165.
[87] Id.
[88] Mu-Hyon Noh v. Chosun Ilbo, Seoul Civil District Court, Dec. 4, 1992, 91
Kahap 82923, reprinted in 47 Eonron Jungjai [Press Arbitration Quarterly] 158,
158-167 (1993).
[89] Id. at 159.
[90] Id. at 160.
[91] Sang-Bum Han, Eonron Bodowa Gongin [News Reporting and Public
Personage], 19 Eonron Jungjai [Press Arbitration Quarterly] 16-22 (1986).
[92] Id. at 20.
[93] Id. at 21.
[94] Hangyure Shinmun, April 7, 1993, at 11.
[95] Kyung-Hwang Shinmun, June 15, 1993, at 23.
[96] Joongang Ilbo, June 15, 1993, at 7.
[97] Dong-A Ilbo, June 16, 1993, at 18.
[98] Hyun-Chul Kim v. Hangyure Shinmun, Seoul High Court, Feb. 27, 1996, 96
Ka 135, Collection of Media-Related Cases, vol. 4 (1997), 199-215. The court
ordered Hangyure Shinmun to pay 300 million Won (about $ 250,000) for damages.
The Korean press strongly protested against the decision, claiming that
journalists should be protected from being sued by public personage unless the
alleged story was written with the knowledge of falsehood. At the same time,
this case made the press recognize the need of a legal safeguard when it is
involved in a libel suit.
[99] Hangyure Shinmun, Jan. 29, 1996, at 21.
[100] Media Today, Feb. 7, 1996, at 38.
[101] Hangyure Shinmun, May 8, 1996, at 11.
[102] Id.
[103] Segye Ilbo, Sep. 20, 1996, at 16.
[104] Segye Ilbo, May 31, 1996, at 17.
[105] Hangyure Shinmun, July 4, 1996 at 11.
[106] Hankuk Ilbo, Nov. 21, 1996, at 15.
[107] Dong-A Ilbo, Nov. 25, 1996, at 20.
[108] Kyunghyang Shinmun, Nov. 26, 1996, at 22.
[109] Kukmin Ilbo, May 17, 1997, at 6.
[110] Kalven, supra note 65, at 60.