Joe of Zen Kimchi Apparently Scot-Free (Or Is He?)
by Brendon Carr
Over the weekend a Korea blogger announced that his long ordeal of police investigation over alleged criminal defamation was over: The police have determined he’s “not guilty”.
A quick overview of l’affaire Zen Kimchi is in order. Blogger Joe MacPherson, having had the Bad Hagwon Experience™, set about to use the bully pulpit of his own weblog to describe the bad character and general untrustworthiness of the owner of the private English-teaching institute where he formerly worked. I don’t know all the details, but apparently she cheated him, forced him to take his complaint to the labor tribunal, then refused to honor the tribunal’s award of wages and costs. So he took her to court, where the court entered a judgment against her and ordered additional interest and costs. And she ignored that too.
This left Joe with the only remedy available to him: Tell the world about this woman, so that others might avoid the hassle he endured.
To an American, this would seem a natural-justice solution. Sunlight being the best disinfectant, and all. But Joe soon discovered that in Korea, defamation is a criminal matter. Unlike the United States, Korea does not exalt free speech as a Constitutional right. However, the Korean Constitution does recognize a right to reputation. In other words, reputation enjoys higher standing under Korean law than free speech. This same idea is common in European countries; America is unique in the degree to which speech is protected. It’s possible that Korea is unique in the degree to which reputation is protected.
The Korean Criminal Code contains an article on criminal defamation. There is no crime of defamation in the United States; to my knowledge, the crime is no longer recognized in the core countries of the British Commonwealth, although criminal defamation used to exist in English law. Instead, the English common law treats defamation as a tort which may give rise to a civil complaint seeking damages.
Korea’s basic statute on criminal defamation is Art. 307 of the Criminal Code:
Art. 307 - Defamation
(1) A person who defames another by publication of facts shall be punished by imprisonment with or without hard labor for a term of up to two years, or by a fine of up to five million won.
(2) A person who defames another by publication of falsehoods shall be punished by imprisonment with or without hard labor for a term of up to five years, suspension of qualifications up to ten years, or a fine of up to ten million won.
You might also be interested in the article relevant to the press:
Art. 309 - Defamation Through Printed Materials
(1) A person who commits the crime of Art. 307, para. (1) by means of newspaper, magazine, radio or other publication with intent to defame another shall be punished by imprisonment with or without hard labor for a term of up to three years or by a fine of up to seven million won.
(2) A person who commits the crime of Art. 307, para. (2) by the method described in para. (1) of this Article shall be punished by imprisonment with or without hard labor for a term of up to 10 years or by a fine of up to 15 million won.
Art. 310 - Justification
If facts published under Art. 307, para. (1) are true and disclosed solely for the public interest, the act shall not be punishable.
Finally, here’s a fun one—the crime of “Fuck You”:
Art. 311 - Insult
A person who publicly insults another shall be punished by imprisonment with or without hard labor for a term of up to one year, or by a fine of up to two million won.
The Art. 309 basically is a club by which the government and business interests muzzle the press. More than 100 criminal complaints are lodged each year against press outlets, and hundreds of cases go to the Communications Ethics Board for non-criminal resolution of disputes. Accordingly, the press here is much more cautious about reporting things where the identities of wrongdoers may be discovered.
But no, newspapers should not be more aggressive and “test the limits” of the statute. The limits are quite clear so there’s no need to test.
As to whether these provisions of the Criminal Code ought to be amended or abolished, I don’t think so. The law is what it is, and given that it matches the social concern over reputation, it fits Korea’s circumstances.
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I was interested in the comparison between the Zen Kimchi case and the Chaebol CEO beating up some guys for his son.
As I understand it, the papers knew about the CEO case, but did not publish it, but once it became common knowledge on the Naver and Daum blogs, they did eventually publish the details.
How many blogs do you think would have to publish the name of Joe’s Hagwon owner before Chris Gelkin at the Korea Herald might be able to publish her name?
Presumably the newspapers are more afraid of a chaebol CEO and the consequences of crossing him—which aren’t limited solely to getting Tasered and beaten with a pipe, thanks to the fact newspapers need advertising—than they are of a hagwon owner.
Additionally, scandal involving the Hanwha Group is of significantly greater public interest than the antics of a hagwon owner.
Brendon, I generally agree with your politics and the vast majority of your opinions. However, I must say that I completely disagree with your stance that since the defamation law “matches the social concern over reputation, it fits Korea’s circumstances.”
In the year 2007, telling the truth—except in rather obvious circumstances like telling insider secrets to boost a stock price—should not be subject to punishment of $5000 or two years in prison. That is the draconian rule of a totalitarian regime not a free society, and it commits the basic fallacy addressed by J.S. Mill in On Liberty—using societal mores as the basis for legislation (rule by force acting as the utility for societal judgments that are best made OUTSIDE the legal system).
Obviously, Sean, you are a very smart guy—agreement with my politics and opinions is the mark of a true genius.
But haven’t you noticed that Koreans seem to have a natural appetite for totalitarianism and one-man rule? It’s built into the social system by default. So while I, as a libertarian, would like to see Koreans choose to expand the sphere of personal liberty, the rest of the public may not be ready for it.