Role of messenger and criminal defamation

By Cho Hee-kyoung

Korea is one of the few countries among the developed democracies where defamation is still prosecuted as a crime. Most member states of the Organization for Economic Cooperation and Development (OECD) long ago decriminalized defamation and treat it only as a civil wrong to be resolved between two private parties. The United Nations Commission on Human Rights ruled in 2012 that criminal defamation is a violation of freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights.

On top of criminalizing defamation, Korean defamation law is also unusual in that Korea is one of a handful of countries around the world where telling the truth can constitute defamation. In most other jurisdictions, the definition of defamation necessarily requires the communication of a false statement.

If what is alleged to be defamatory is in fact true, then this would constitute an absolute defense against defamation. Not so in Korea; under Korean law, even a true statement can be defamatory. This situation means that there is inevitably a chilling effect on what would otherwise be a valid criticism if it hurts the reputation of someone, even if that reputation is built on a falsehood.

The number of criminal complaints filed for defamation in Korea has increased dramatically in the last decade. Between 2010 and 2020, the number of cases filed for criminal defamation in Korea more than doubled from 14,912 cases to 35,518 cases, according to the office of the Rep. Park Ju-min of the opposition Democratic Party of Korea (DPK). However, the number of cases that were actually prosecuted has remained fairly steady at an average of around 11,000 cases (a figure that includes insult as well as defamation cases), which indicates that most criminal defamation cases that are brought do not merit prosecution.

Egregious examples abound of criminal defamation being misused to silence legitimate criticism. One latest example involves Rep. Ahn Cheol-soo of the ruling People Power Party (PPP) on whose behalf the conservative party has filed a complaint against an economist, Lee Sang-min, for criminal defamation over an esoteric concept of debt known as "D4." The whole thing arose out of what would otherwise have been a somewhat tedious but necessary debate about the need for pension reform.

One highlight during the uninspiring television debates of presidential candidates earlier this year was when the then-presidential candidate Ahn managed to secure pledges from all three other main candidates to reform the pension system. In an earlier appearance on a popular social media channel for the economy, Ahn had tried to explain why pension reform is terribly urgent by citing the figure of 17 quadrillion (10 to the power of 16) won ($1.3 trillion) in debt that the pension fund will incur by 2088 unless there is drastic reform of the system.

He also pointed out that Korea currently has more public sector debt than is usually acknowledged because of the pension liability, D4, is excluded from the existing public sector debt figures of D1, D2 and D3, and that we were in worse fiscal condition than admitted by the Moon Jae-in administration at the time.

Money, debt, assets and so on, are words that have a simple, straightforward meaning for non-economists. But in the hands of economists, they transform into something much more complicated. For example, money is not just money but there are various categories including M0, M1 and M2. M0 equals coin and paper currency and central bank reserves. M1 covers M0 plus demand deposits (i.e., money in checking accounts) and travelers' checks. M2 covers M1 plus savings deposits and money market shares.

In a similar way, the Korean Ministry of Economy and Finance uses the concepts of D1, D2 and D3 to categorize debt, whereas the International Monetary Fund uses the concepts of D1, D2, D3 and D4. But because the method of calculation is different, the respective D1 to D3 figures from the Korean ministry and IMF cannot be compared on a like-for-like basis. For our purposes, what is relevant is that the IMF does not even calculate the D4 number for Korea because the Korean government does not report all the relevant government employment-related pension liabilities necessary to calculate D4.

Lee, an economist from the Fiscal Research Institute, pointed out a couple of factual errors in Ahn's premises. First, the figure of 17 quadrillion won is incorrect because it had not been discounted to its present value. We know the concept of present discounted value from the inverse example of the Japanese pension fund paying the Korean victims of wartime slave labor 100 yen as the amount of pension due to them 77 years ago. Calculated according to present value, 100 yen should be more like 1 million yen. In the same way, any figure representing a value in the future has to be discounted back to represent the equivalent value in the present day.

Second, Lee pointed out that Ahn was using the concept of D4 in an inaccurate way. Ahn was using D4 in a way that made it seem as if D4 was a figure used by the Korean government, when it was not the case and he was even mixing up what D4 actually represents in a way that is different than how the figure is calculated by the IMF. Ahn seemed simply to ignore the fact that the IMF does not in fact calculate D4 for Korea because of the lack of data.

What Ahn did was laudable. He tried to give everyone a wake-up call about the dangerous state our national pension system is in and urged for reform. But in the process he seems to have made some sleights of hand with numbers and references that enormously exaggerated our public sector debt. The intention is understandable but for a public discourse on such an important topic, politicians should be prepared to listen to criticisms.

The conservative party needs to realize that it is not the criticism that hurts their politicians' reputation but rather, the attempt to shut down public discussion on thorny issues by bringing criminal complaints against those who make even constructive criticism.

Cho Hee-kyoung (hongikmail@gmail.com) is a professor at Hongik University College of Law.