THE PRESS Arbitration Law in South Korea has recently been put on the table for amendment, resulting in great controversy. Ranking 42nd in the 2021 World Press Freedom Index[1], the highest among Asian countries, South Korea protects “freedom of the press” to a substantial degree without suppression or censorship. With the Democratic Party intent on amending the Press Arbitration Law by adding a “punitive damages” clause, allowing individuals to demand compensation for defamation, some worry that freedom of the press in South Korea is at risk.

How the controversy began

   Considering the existence of the term gi-rae-gi, a combination of “reporter” and “trash,” recent efforts to amend the Press Arbitration Law does not come as a huge surprise. Yoon Young-chul (Prof., College of Communication), in an interview with The Yonsei Annals, pointed out that declining credibility in legacy media[2] is a global phenomenon, but is so serious in Korea that domestic media reform is necessary. The 2021 Digital News Report showed that Korea is one of the countries with the lowest public trust in domestic media[3]. Such skepticism toward the press comes from the overflow of fake news that does not often reflect reality and clickbaits readers with provocative headlines. 

   The Press Arbitration Law was first legislated back in 2005 to establish a mediatory system for legal disputes over defamation in media reports to be resolved[4]. Article One specifies that the law aims to balance freedom of the press and public accountability of media. 

   It is the “amendment” of the Press Arbitration Law that has been embroiled in recent controversy. Proposed by 11 Assembly members of the governing Democratic Party, the amendment includes a clause about “punitive damages.” It specifies that one can claim “a maximum fivefold” compensation for damages of property, personal rights, or mental health caused by the media companies. The provision can be invoked when the press is seen as having intentionally hurt the victim through activities such as “vindictively and repetitively making false or fabricated reports.” By doing so, the law aims to prevent the propagation of fake news and protect individuals in a more “rigorous” manner.

   Although opposition to the amendment has emerged, mainly from the opposing party, the ruling party has forcibly pushed the legislative process. Now, international organizations like the International Federation of Journalists, Reporters Without Borders, and even the United Nations Human Rights Council, have voiced their opposition. While the amendment was initially supposed to be presented in the Assembly plenary session on August 30 as the next legislative stage, the two opposing parties agreed to have a meeting in advance to discuss and coordinate. As a result, they agreed to postpone the amendment to September 27 and to form an eight-member consultative group for further examination and consensus. President Moon also indicated his stance on the issue on August 31 that he hopes “for national consensus to take place through open social discussion, because freedom of the press and protecting victims both are crucial[5].” With National Human Rights Commission of Korea putting the brakes on the amendment on September 17, tense debate over the amendment is still ongoing in order to reach a middle ground.

Concerns about the amendment

   The most important reason for opposing the amendment is that, according to its opponents, it violates freedom of the press with its excessive regulation on “media expression.” These seemingly subtle controls, burdening journalists to align themselves with more restraints, can lead to media censorship. To begin with, press organizations may face a barrage of lawsuits based on the amendment, even if they have not made false reports. This may result in the press becoming more passive when it comes to covering important or sensitive topics to avoid being sued. In an interview with the Annals, Kim Dong-hoon, the President of the Journalists Association of Korea, noted that the amendment may even allow “double punishment” because an individual can already make either civil or criminal lawsuits for defamation. Moreover, although the amendment says that a right to claim damages is not given to company executives and high-ranking government officials, loopholes still exist. The media could still be wary of reporting on topics related to powerful individuals, as their relatives or retirement status grants them the right to claim punitive damages. Yoon also pointed out that second and third-tier high-ranking public officials are still allowed to claim punitive damages.

   Some have also criticized the law for its “ambiguity.” There is no sure way to measure a press organization’s intention and willful negligence. Yoon said, “There are diverse opinions on what ‘fake news’ is and neither academic circles nor judicial circles have been able to come to a consensus on its definition. Having a judge do the job—distinguishing fake news and assessing intentionality—can accelerate politicization of the judiciary.” The amendment was also vague in terms of scope. There was confusion as to whether foreign press organizations would be liable as well. The initial statement put forth by the Democratic Party said that foreign press would also be subject to the new law, contradicting the explanation from the Culture, Sports and Tourism Committee. The party later corrected itself, saying that only those from the registered press are subject to the law.

   The “content” of the law is not the only issue that has been embroiled in controversy. The Democratic Party’s hardline stance which aims to pass the law without reaching a general consensus has led many to raise the question of proper procedure. For example, the amended law was passed unanimously at the subcommittee of Culture, Sports, and Tourism Committee on July 27, but only with the consent of seven Democrats while the two members of the committee’s opposition were absent, one as a sign of protest and another because of mandatory self-quarantine. The opposition party also pointed out that they did not have access to the latest version of the amendment even until the vote that day[6]. 

   Lastly, in the past few years, “news” has expanded to encompass not only legacy media, but also new forms of communication like YouTube and social media. Yoon and Kim both asserted that putting responsibility for “fake news” solely on legacy media could be unfair, considering that the sources of fake news range from media personalities on social networking services to even some politicians themselves. “It is crucial to identify reasons behind declining quality and credibility of the press. There should be no need to forcefully expedite the legislative process for the amendment. Enough discussion between the related parties needs to take place,” said Yoon. Meanwhile, Kim expressed his concerns on how the journalistic profession is becoming more and more precarious, in both how the public views the job and the legal repercussions that one can face for practicing it. “Journalism needs some painful self-reflection for sure, but this amendment is not the right way of regulation,” he said.

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   It would not be an exaggeration to say that the press subtly shapes how the public perceives societal and international issues, making it heavily influential. This is exactly why the press should both be “free” and “responsible” at the same time. The amended press arbitration law attempts to strike this balance. However, only time will tell whether it will be successful in achieving its aims.

[1] Reporters Without Borders

[2] Legacy media: Traditional mass media institutions as newspaper, television, and radio

[3] Reuters Institute

[4] Korean Law Information Center

[5] Money Today

[6] SBS News