The National Assembly's plenary session failed to reach an agreement on September 29 over the Media Arbitration Act, which had been under intense discussion for a month. The floor leaders of the ruling and opposition parties held relay negotiations for three days from September 27, but ultimately failed. Currently, the revision to the Media Arbitration Act is controversial in the political world. It has divided views to the extent that the ruling party calls it the "Fake News Damage Relief Act" and the opposition party calls it "Putting a Gag on the Press." What will happen to the future of Korea's Media Arbitration Act in a transitional period of finding a balance between relief from damage to fake news and freedom of expression?
The Media Arbitration Act and the amendment
The official name of Korea's Press Arbitration Act is the "Act on Media Arbitration and Damage Relief." This law was enacted in January 2005 to unify the media damage relief system, which had been distributed in individual laws such as the Broadcasting Act at the time, and to relieve the rights of citizens that had been infringed upon by media reports through correction reports and compensation. According to this Act, criminal proceedings, civil damages claims, and correction reports may be filed in the media. The Press Arbitration Committee said that the number of applications for mediation for media damage has increased year by year. It surged to 3,544 in 2019 and exceeded 3,900 in 2020. However, the plaintiff's winning rate and damages quotations are rather decreasing. The average value of media damages judgments decreased to 14.64 million won in 2019 from 24.24 million won in 2010. In addition, more than half of the quotes over the past decade have been less than 5 million won, which is insufficient to properly remedy the damage, considering high lawyer fees. Today's media environment has changed a lot compared to the past. For example, news articles are not only shared and expanded upon through YouTube or other SNS platforms beyond the Internet, but new stories are reproduced using the original articles. Through this process, there are many cases where insults, hatred, and defamation are spreading beyond just the person concerned but to his or her family or community. Some believe that social murder is also taking place due to the influence of the media. In this way, public consensus has begun to form around the fact that the current Media Arbitration Act has limitations in preventing fake news and its resulting damage.
In response, the Democratic Party of Korea made an amendment to the Media Arbitration Act on July 27, held a plenary session of the National Assembly's Culture, Sports and Tourism Committee on August 19, and voted on the revision of the Media Arbitration Act. The purpose of the revision of the Media Arbitration Act is to prevent damage caused by malicious fake news reports by media companies. In addition, Sung Park, the chairman of the Democratic Party's National Assembly's review subcommittee on the Culture and Arts Act, said, "There are many ordinary people who sometimes make extreme choices through misinformation." The purpose of this media intervention is to provide relief to the general public, he said. To this end, the amendment allows punitive damages equivalent to five times the maximum amount of damages to be claimed in the event of damage caused by false/fabricated reports. It also guaranteed the right to claim the blocking of articles and expanded the period and method of requesting correction reports from media companies that report fake news. The provision of blocking article reading is literally a measure to limit whether articles are published in the media, and it seems to be a measure that can more fundamentally relieve damage caused by the media by limiting freedom of speech compared to the existing corrective reporting measures. The media community fiercely protested against this amendment. Seven organizations, including the Korea Journalists Association, issued a joint statement on August 19 saying, "The ultimate victim of the revision to the Press Arbitration Act, which defines the media as the public enemy, could be citizens. This is because citizens' right to know is ignored and citizens' critical voices are not represented through the media and supporters threaten the media with a huge amount of punitive damages."1) These conflicts are growing and creating several issues by focusing on the contents of the amendment.
Provisions of toxin
First, it is controversial that the amendment to the Media Arbitration Act is ambiguous and broad. It includes not only intentional cases but also cases due to gross negligence, so as a result, even misinformation can be subject to punishment. However, it is often very difficult and ambiguous to judge whether this false report itself is false or true. In addition, the amendment is controversial because it is said to estimate the intentional gross negligence of the media very abstractly and comprehensively. This process of 'estimation' may include violations of the law during the coverage process, such as recording. If it is illegal for the media to record during the coverage process, necessary media activities will inevitably shrink. In response, lawyer Son Jiwon said, "In the end, it has made it much easier to file punitive damages against many media reports abstractly and comprehensively." He also expressed his opinion that it is the result of the law that the media is at a disadvantage in media litigation.2) In the end, it is a bill that will certainly fuel excessive lawsuits against the media and reduce freedom of speech. In addition, when the issue of containing such ambiguous and extensive content was raised, the Democratic Party of Korea unveiled an amendment on August 17 that changed some of the contents. It included six revised standards of intentional gross negligence: "violation of the law upon coverage," "no correction," "quote fake news without verification," "repetitive false and manipulated reports," "distortion of article titles," and "distortion of article." However, despite these amendments, it is still criticized for being ambiguous. Mindful of these concerns, the Democratic Party added that it cannot file a compensation suit for damages in the case of "violation of the public interest," "violation of the anti-graft law," and "media reports on public interests." However, controversy over the ambiguity of the amendment is expected to continue as it continues to be pointed out that the criteria for "public interests" are still unclear.
The next problem is the issue of double punishment. In Korea, there are already several devices in place to relieve damage caused by the media, and it is unclear if punitive damages will be added to this. The punitive damage compensation system is an action in which a private fine can be imposed to suppress damages to individuals in cases where criminal systems or criminal sanctions are insufficient. This system is not unique to Korea but is already in place in the United States and the United Kingdom. In Korea, punitive damages systems began to be introduced in the Fair Subcontracting Act in 2011, and 19 individual laws have been enacted and implemented, including the Fixed-Term and Short-Time Workers Protection Act, the Credit Information Use and Protection Act, and the Unfair Competition Prevention Act. In addition, debate continues as to whether it is appropriate to substitute such a system for media sanctions in Korea. First of all, Korea has prescribed media arbitration procedures to sanction false reports or relieve damage, which can correct media reports later or allow damages to be claimed. As a result, relatively rapid correction reports and future reports are possible. Therefore, there is a view that unnecessary punishment may be additionally strengthened even though there is already a media damage relief procedure in place. On the other hand, there are doubts and questions about whether Korea's existing media arbitration laws and systems actually give victims relief from media damage, and some believe that a punitive damage compensation system is needed for the revision of the media arbitration law. The debate is intensifying as the two collide.
There is a further controversy that the amendment dampens the media's criticism function. Survey results show how burdened reporters feel about being sued in the process of covering and reporting. In 2019, the Korea Press Foundation's Media Research Center conducted a survey of 301 reporters on media litigation and social evaluation of the media, and 27.6% of the respondents said they had been legally sued for coverage or reporting. In addition, nearly half of the respondents said they would refrain from making follow-up reports just because they were subject to a lawsuit by the other party after the report. In addition, if the revision to the Media Arbitration Act is implemented, it will be easier to file lawsuits, which will increase their number, as well as increasing the possibility of shrinking media reports and the amount of damages that media companies and reporters may have to pay. In addition, there is a clause in the amendment that estimates that media companies have committed intentional gross negligence and applies the burden of proof to media companies. They say that media companies are responsible for proving that false reports were unintentional. Most common laws stipulate that the plaintiff who filed the lawsuit is responsible for proof, but the Democratic Party of Korea, which issued the amendment, argued that citizens with less information than the media may find it difficult to prove the fact. The opposition party points out that these provisions can dampen the media's reporting and coverage process, which inevitably weakens the media's criticism function. As a result, freedom of the press is shrinking, and the monitoring function of society cannot be properly performed.
The key to the ruling party's revision of the Media Arbitration Act, which has various issues, is the introduction of a "punitive damage compensation system." The amendment states that the court can set the amount of compensation up to five times the amount of damage in the event of damage caused by false or manipulated reports caused by intention or gross negligence by the media. On top of that, the amount multiplied by 1/1,000 to 1/10,000 of the previous year's sales of the media can be calculated as the final amount of damage. This part was the most vigorously opposed clause by the People Power Party. In order to find an agreement, the People Power Party and Democratic Party proceeded with closed-door negotiations, and the Democratic Party said it would omit the punitive damages' limit (up to five times) from Article 30 of the Amendment to the Media Arbitration Act. Instead, they added that they would 'ensure sufficient compensation for damages' while also saying that 'the amount will be increased depending on the circumstances of the report or the degree of damage.' However, the People Power Party said, "We can accept sufficient compensation, but we cannot accept the idea of increasing the amount." As a result, it was difficult to come to an agreement with the Democratic Party, saying, "Then it is meaningless to negotiate." In the end, the ruling party and the opposition party, which have been confronting various previous issues over the revision of the Media Arbitration Act, ended without narrowing their differences at the plenary session.
Not only the opposition party but also domestic media organizations are strongly opposed to the Democratic Party's handling of the revision of the Media Arbitration Act. The Journalists Association of Korea, the National Press Union, the Korea PD Federation, and the Justice Party opposed the enforcement of the Media Arbitration Act at a joint press conference at the National Assembly on August 17. Representatives of the four media collaboration organizations also issued a statement on August 13, arguing that the current Democratic Party's revision should not be partially revised, but should undergo a full review from scratch. It is also contrary to the Moon Jaein government's pledge to expand freedom of expression and self-regulation, and the collection of opinions from incumbent journalists and citizens is demanded. The World Newspaper Association also urged the withdrawal of the amendment. The Korea Newspaper Association reported this situation to the World Newspaper Association, which has 15,000 media companies from 69 countries. The association put out an official statement on August 12 titled "The media around the world are working with the Korean media to fight the 'fake news' law." The statement calls on related agencies, including the Korean government and the ruling party, to immediately withdraw the revision to the Press Arbitration Act, which was hastily prepared for false information, saying the revision could silence critical media and undermine the Korean democratic tradition.
The revision to the Media Arbitration Act, which has drawn strong opposition from the opposition party and the media community, is bringing concerns from the international community. Human Rights Watch (HRW), an international human rights organization, sent letters to the Blue House and the National Assembly on September 16 on amendments to the Media Arbitration Act. In an open letter, HRW pointed out, "The amendment could seriously undermine freedom of expression, freedom of information, and freedom of speech, and make critical media coverage difficult."3) In particular, HRW was concerned that if media outlets self-censored to avoid reports that could cause lawsuits regarding the "false manipulation report" of the revision, there is the potential to limit various expressions, including critical reports and reports on unpopular or minority opinions. They said that the revision to the Media Arbitration Act will eventually end up silencing the Korean critical media. The U.N. Supreme Representative Office of Human Rights also sent a letter to the Democratic Party along with the Ministry of Culture, Sports and Tourism on August 30 demanding the South Korean government's official position on allegations that the revision of the Media Arbitration Act violates the Universal Declaration of Human Rights and the Free Human Rights. Concerns are growing not only at home but also abroad over the interpretation that the amendment to the Media Arbitration Act is an excessive regulation that could infringe on freedom of speech.
Discussion from various angles is needed
The National Assembly's handling of the revision to the Media Arbitration Act has virtually failed this year. Some observers say that it will not be easy to reach an agreement ahead of the presidential election in March next year. With both freedom of speech and protection of victims being important, we could consider this situation rather as an opportunity for social communication and open consultation on the revision of the Media Arbitration Act. It seems that effective alternatives need to be prepared through re-recognition of the magnitude of media influence and discussion from various angles.
1) Hyewon Lim, "The Amendment to the Media Arbitration Act is Full of Ambiguous Standards", Ekorea, August 20, 2021
2) Juhyeon Lee, "The Two Eyes on the Amendment to the Media Arbitration Act", KBS, August 15, 2021
3) Lee Chungjae, "The Media Intervention Law That Spreads to 'International Disgrace'", Dailian, September 23, 2021
Kim Lee Jiwon / Reporter
Park Gil Yeonseo / Reporter