Organizer and Chair: James M. West, Harvard Law School
Discussant: Edward J. Baker III, Harvard-Yenching Institute
The transition from military authoritarian rule to civilian democracy has been unfolding in South Korea in a period of rapid and dramatic change in information technologies and means of communication. This panel undertakes to describe and analyze some of the important legal and institutional developments of the 1990s which currently are transforming the political and cultural environment in South Korea. The administration of Kim Young Sam has embraced "segyehwa" or "globalization" of Korean society as an objective concordant with democratization. From a legal standpoint, progress has been made in introducing new laws recognizing freedoms and protections internationally regarded as essential for a well-functioning liberal democratic order. The content and effectiveness of these new legal norms have often been the subject of controversy, and the papers survey conflicts that have arisen over the proper role of the state in fostering, limiting and policing the mass media and other realms of public expression.
Even as past proclivities of military regimes to suppress dissent have been ameliorated, disagreements over media law reflect diverging opinions about the extent to which the government ought to steer and discipline the mass media in order to preserve national security, to protect the integrity of Korean culture, to foster ethical and educational goals favored by the state, and otherwise to set parameters within which future political and economic development will unfold. A relative diminution in overt censorship and state paternalism entails that private rights in such areas as defamation law are of growing significance in setting bounds to public discourse. Considerable ambivalence toward "globalization" remains apparent in legislation responding to "globalized" and "decentralized" media which enable individuals to by-pass traditional broadcasting and news dissemination centers and to connect directly with foreign or unofficial sources of information.
Examination of legislative enactments and judicial decisions concerning the mass media also affords a useful indication of the progress achieved to date in instituting a functioning "Rule of Law," regarded by many as an important index, along with free and fair elections, for assessing the consolidation of democracy in Korea. Given the close link between press freedom and the integrity of representative democracy, developments in this domain may be of interest not only to specialists in law, but also to social scientists and historians.
Freedom of the Press Under Kim Young Sam's Civilian Regime
Kyu Ho Youm, Arizona State University
Since the inauguration in early 1993 of President Kim Young Sam, it has been widely assumed that news reporting by the Korean press no longer would be subject to the heavy-handed modes of censorship exercised by the prior military regimes of Park Chung-Hee and Chun Doo-Hwan. The process of democratization has expanded the role of formal law in the civilian administration's attitude regarding the appropriate balance between press freedom and other societal interests, including national security and personal reputation. This paper will examine various legal decisions through which the government of Kim Young Sam has expressed its priorities in the sphere of the mass media.
Among the recent controversies meriting comment are a libel case successfully brought by a son of the president and the deportation of a foreign journalist. In January 1996, Kim Hyon Chol, second son of President Kim Young Sam, won a defamation lawsuit against the Hankyoreh Shinmun arising out of a story alleging that he had received a political donation on behalf of his father. In the context of hopes for consolidation of a free press as a permanent fixture of Korean democracy, the Kim Hyon Chol case was seen not as an ordinary libel action, but as a case with distinct overtones of seditious libel, leading some observers to view the judgment as incompatible with the strong press freedom characteristic of a truly democratic body politic. Further, the expulsion from South Korea in March 1996 of journalist Bruce Cheeseman, a correspondent for the Australian Financial Review, for reporting which allegedly "went beyond the bounds of sound journalistic practice," led some in the international press corps, including the Foreign Correspondents Club as a body, to protest what they saw as intolerance of criticism reminiscent of prior authoritarian regimes.
A number of court decisions, statutory mechanisms and executive measures impacting on press freedom will be discussed in the course of analyzing the Kim Young Sam administration's views on press Freedom and the limits on such freedom implied in prevailing notions of "responsibility."
Constitutional Court Decisions on Freedom of Expression
Kun Yang, Hanyang University
The extent of protection of free expression in a country is ultimately determined by constitutional adjudication. Since its establishment in 1988, the Constitutional Court of the Republic of Korea has become an important institutional arbiter of the pace and extent of the transition to democracy. The purpose of this paper is to provide an overview of decisions of the Korean Constitutional Court regarding freedom of expression and related issues.
This paper is composed of three sections. The first part examines cases concerned with national security and freedom of expression, notably Constitutional Court judgments on the constitutionality of the National Security Act, the Military Secrets Protection Act, and the Act on Assembly and Demonstrations. The second part focuses upon mass media regulations, specifically analyzing cases challenging the statutory permit system for registration of periodicals and cases concerning the right of reply accorded to persons who believe themselves aggrieved by false or defamatory media reports. The final section discusses other freedom of expression controversies, including a ground-breaking case recognizing a constitutional right of access to information in the custody of the government.
In conclusion, the paper will summarize the general trends and characteristics of Korean constitutional jurisprudence in the domain of freedom of expression, assessing the impact of the Constitutional Court in relation to other institutions, public and private, which are shaping the ongoing process of democratization.
New Communications Media: Legislative Responses
James M. West, Harvard Law School
Like the rest of the world, Korea in the 1990s has been swept up in the "Information Revolution." The traditional mass communication modalities of newspapers, print periodicals and broadcasting have been supplemented, and eventually may be supplanted, by new media: cable television, direct-to-home satellite, Internet links including electronic mail and the World Wide Web, and wireless personal communications systems. So-called "convergence" of media is occasioning profound changes in production and consumption of information, and this process will have far-reaching impacts on politics, business, education, entertainment and most other realms of life.
The object of this paper is to survey and analyze recent (1992-1996) South Korean legislation and administrative regulations concerned with the new media. Among the topics to be discussed are: licensing systems, privatization of state broadcasting and telecommunications entities, content regulation (including regulation of access to foreign programming and foreign providers of value-added network services), electronic publishing, protections against unauthorized surveillance, encryption, restrictions on use of personal data, and other privacy safeguards. Examination of new laws also involves review of "turf battles" among various governmental agencies who seek to claim jurisdiction over domains of information technology and communications which promise to be of increasing importance. The process of technological convergence is causing redundancy in various government agencies, such as those involved with "moral" censorship of films, broadcast programs, multimedia software and other "virtual" performances.
With respect to transborder telecommunications, the paper will note the implications of South Korea's entry into the OECD, its participation in regional organizations such as APEC and the Asian-Pacific Telecommunity, and also several issues raised by laws seeking to block and monitor private communications between the two Koreas.