Internet Laws: South Korea
While North Korea has the steady reputation of an oppressive authoritarian country, its southern neighbor, full of K-pop artists and glass skyscrapers, looks liberal and progressive. Yet, it seems that it’s liberal and progressive by sheer contrast. A succession of corrupt governments and a 60-years old standoff with the communist-nationalist regime across the northern border resulted in what looks like a litigation paranoia, but is in fact a set of exploitable rules to impose control. The internet, as the ultimate place to exercise one’s right for free speech, is not an exception from this paradigm. Moreover, it’s arguably the best place to look it in the face.
We’ve already analyzed the notorious internet regulations in the United States and Russia. In this feature, we’ll take a closer look at South Korea.
What’s Up With the Internet in South Korea
About 92.7% of 52.2 million people in South Korea are connected to the web. Many places, like train stations and community centers have public Wi-Fi and about 88% of people use connected smartphones. This makes South Korea one of the most connected countries in the world.
According to the Freedom on the Net Report 2018, South Korea has “Partly Free” internet. The government has imposed strict control over what is posted online, and is actually enforcing these rules vigorously.
“Despite the fact that South Korea has one of the most advanced information communication technology sectors in the world, online expression remains under the strict legal and technological control of the central government. The country is the global leader in Internet connectivity and speed, but its restrictions on what Internet users can access are substantial,” the OpenNet research reads.
Article 21 of the Korean constitution stipulates that “all citizens shall enjoy freedom of speech and the press,” and censorship is not allowed. Yet, the very same article states that “neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics.” This statement is very vague, and basically gives the central government the ultimate right to decide whether something is right or wrong and punish any citizen who has ever posted something on the web. While this provision is not censorship per se, it can easily act as grounds for one if someone wants it to.
Apart from these somewhat contradicting statements in the constitution, South Korea has several pivotal laws that regulate the not-that-free speech online.
Key Laws Regulating Online Speech in South Korea
Substantial part of the authorities’ effort to regulate the internet speech is aimed to fight the North Korean propaganda and anti-military moods. Since 1948, South Korea has the National Security Act (NSA), under which people can get prison sentences of up to 7 years for praising or expressing sympathy to the North Korean regime. The NSA has been reported as the way the authorities use to target their political opponents and dissidents for many years. Moreover, there is an illuminating story published by Time: a 24-year-old South Korean got a 10-months prison sentence for retweeting several posts from a Twitter account related to North Korea.
According to the 1990 Act on Exchanges and Collaboration between South and North Koreas, South Koreans should report in advance about any interaction with any materials or websites maintained by North Koreans. If a citizen fails to report that they are going to visit such website, whether for research purposes, education, or just for the fun of it, they may face a fine of up to one million Korean Won ($900).
To be fair though, the neighbouring Korean regimes are looking forward to peaceful coexistence.
“Now that we’re moving from a framework of division and confrontation to one of peace and coexistence, we need to be considering institutions and laws that are suitable for that. I was saying that the National Security Act is one of those,” said South Korean Democratic Party leader Lee Hae-chan.
Just like in the US and Russia, in South Korea there are several anti-terrorism laws that cover internet speech. Here the key piece of legislation is the Act on Anti-Terrorism for the Protection of Citizens and Public Security. This law empowers the National Intelligence Service (NIS), a Korean counterpart to the CIA, to order website operators to remove any content posted online, as stipulated by Article 12. Article 9 of the law allows the agency to access people’s personal travel and financial records, private conversations, location data, and other personal data, based on a simple suspicion and without any judicial supervision.
Due to criticism by political opposition and civil rights groups, the law was amended to include a position of the counterterrorism human rights officer. However, the role is perceived as insignificant as it gives to little power over what the NIS is doing.
“I think that we are seeing these side effects because they started out with just the counterterrorism functions. If the human rights officer is to have any significance, the government needs to be committed to using a transparent process to appoint someone who will be acceptable to everyone. But I get the feeling that the government isn‘t even able to do that,” said Oh Dong-seok, a professor in the law school at Ajou University.
In general, similarly to other anti-terrorism laws, the Korean legislation is aimed more at suppressing the dissent within the country, rather than at protecting people from terrorism threat.
“In a broader sense, the legislation fits into a pattern of behavior which portrays a government far more interested in stifling dissent and placing limits on individual liberties than one which embraces the values crucial to sustaining a vibrant democracy. An administration which came to power with the assistance of a politicized intelligence service has gone about emboldening that same agency, rather than working to rein it in,” reads the article by Geoffrey Fattig, a researcher at UC San Diego focusing on South Korean politics and inter-Korean relations.
Another important law regulating the internet in South Korea is the Information and Communications Network Act (ICNA). In particular, Article 44(3) of the ICNA encourages companies to proactively censor problematic content posted on their websites. The companies that show enthusiasm in taking down illegal content will have a more favorable position in court, while others may be held liable for things posted on their platforms. All in all, it’s the exact opposite of Section 230 of the Communications Decency Act in the US.
One of the most notable subjects under the ICNA is defamation. In South Korea, online defamation is a criminal offence resulting in up to 7 years in prison or a fine of up to 50 million Korean Won ($9,000), even if the allegedly defamatory statements are proven to be true. In the first half of 2016, 6,137 defamation cases were filed, compared to 3,610 in 2007.
In 2011 South Korea’s Supreme Court found a popular political commentator Chung Bong-ju, 51, guilty of defaming then president Lee Myung-bak. Coincidentally, Chung Bong-ju is known for criticizing Lee Myung-bak.
“In America, it’s almost impossible to prove defamation against a public figure. Here it’s easy. . . . When people open their mouths now, they are regulated,” Chung Bong-ju said.
This and other examples cited in media are pointing at quite exploitative approach of the Korean authorities to the laws that are meant to protect people. Unsurprisingly, these laws serve more to protect the acting administration. And the Korean government has shown a years-long streak of corruption and misfeasance.
Who’s Behind It
The censorship machine in South Korea operates mostly through three cogs: the KCC ( Korean Communications Commission), the KCSC (Korean Communication Standards Committee), and the KISO (Korea Internet Self-governance Organization).
The KCC was founded back in 2008 as a watchdog for all the media, while the KCSC is its subdivision focused exclusively on the internet. The functions of those establishment mostly focus on monitoring the internet for the content that shouldn’t be there according to their policies, which includes nudity, materials considered harmful to the underaged, the notorious defamation, expressions of undying love for North Korea, and anti-military content. When they find what they were looking for they order for it to be removed. All in all, it’s more or less similar to Russia’s Roscomnadzor.
The KISO, on the other hand, is not a government organization. It is a roundtable of the country’s most prominent ISPs and Internet platforms internet platforms like KT, DaumKakao, Naver, or SK Communications.
The KCC consists of five commissioners, two of which are appointed by the president, including the chair. The rest are appointed by the National Assembly. Legally, the KCC is the subordinate of the president, and therefore directly enforced his or her policies. And those policies aren’t always fair and innocent, considering the corruption scandals around the highest officials in the country. Moreover, certain commissioners aren’t exactly fair players as well: thus, then-Chairman Choi See-joong had to resign back in 2012 as a result of a bribery scandal.
However, he was a close associate of then-president Lee, and even though the court sentenced him to two years of imprisonment and a substantial fine of KRW 600 million (around $540 thousand), he was briefly pardoned by the president.
In 2013, the new president Park Geun-hye appointed her own associate, Lee Kyeong-jae as the head of the KCC, however, she was impeached in 2016, and charged with abuse of power, bribery, extortion, and leaking classified information.
All in all, the internet watchdogs are usually closely associated with those in the corridors of power, and have to obey their direct orders, which, considering the rich history of corruption in the presidential office might even be downright illegal. Though, in the conditions where any public statement online can be seen as a study in defamation or a passionate ode to Kim Jong-il if someone really wants it to, there is nothing illegal.
Military people in South Korea face additional risks for being imprisoned. While the country still has compulsory army conscription, it is illegal to be gay in the military. In order to find gay people in their ranks, the country’s army chief, General Jang Jun-kyu ordered a nationwide swipe in 2017 where the soldiers’ personal phones were taken from them and inspected for any gay content. Moreover, the army set up several fake accounts on gay dating apps to catch their personnel who is willing to engage in same-sex relationship or just intercourse. The punishment doesn’t go away even if the intercourse in question happened off-duty. That’s because Article 92 of the Korean Military Criminal Act describes homosexuality as a sexual harassment.
However, there is always hope. The newly elected South Korean president Moon Jae-in said:
“We need a national cleanup. We need to liquidate the old system and build a new South Korea. Only then can we complete the revolution started by the people who rallied with candlelight.”
However, no exact plans of the cleanup when it comes to the censorship cobwebs are known for now, and all the factors that keep up the countrywide censorship are still there.
It would be unfair to claim that the KCC is at the source of all evil in the Korean internet. The internet censorship in Korea actually began in good old nineties, and was conducted by the Ministry of Information and Communication. Basically, its functions were the same. And the tradition of censorship goes back to the source of all problems on the peninsula: the Korean War back in the fifties.
Both sides look at each other as prodigal children occupied by enemy forces. Both sides actually claim they wish the two countries to become one again, even though they have a different “one country” in mind. Since the end of the Korean War, which is still technically an armistice, the tensions between South and North Korea fluctuated, and the idea of peace talks between them surfaced only earlier this year, sixty-five years after the end of the active warfare. So, in some sense, the sensitivity of such questions as praising the literal enemy may be quite understandable.
The problem is that while North Korea is an autarkic dictatorship with ideology based on nationalist paroxysm, profoundly revised communism, and thoroughly rewritten history, South Korea has implemented its own sort of dystopia, not as Orwellian as their neighbour’s, but still comparably disturbing in certain regards.