The 'Amendment to the Media Arbitration Act', which introduced the media punitive damages system, crossed the ridgeline of the 9th section of the National Assembly.
Only the passage of the plenary session of the National Assembly remains.
The media is protesting, and the ruling party is showing its will to go ahead.
The Democratic Party of Korea has been saying that there is no problem with the amendment bill, and rather, the US is implementing a much stronger system of punitive damages.
At the Supreme Council meeting on the 23rd, Democratic Party leader Song Young-gil said, "The United States is now paying huge punitive damages."
Chicago human rights lawyer Elmer Guts sued a media outlet who reported that he was a "Marxist and advocate for the violent occupation of the United States government", when the Supreme Court awarded him $300,000 in punitive damages. Including $400,000 in damages.
Even the United States, which values freedom of expression, does it, but it is read as meaning why you are against this.
From these examples alone, it really seems like the United States has a strong punitive damages system against the media.
Indeed, I consulted a legal expert in the United States and fact-checked it.
Discreet U.S. Punitive Exclusions
In fact, the discussion on a specific case will never end. This is because there are many cases of opposition to the 'Guts v Robert Welch' ruling.
For example, the U.S. Supreme Court's 'New York Times v. Sullivan' decision in 1964 is a representative example. At the time, the New York Times ran a fundraising ad for a human rights group supporting Martin Luther King, which included police brutality against college students. Sullivan, a former police chief, sued the New York Times, but lost the case. The U.S. Supreme Court held that public officials could not punish the press unless they had actual malice and, furthermore, provided evidence that they had disregarded the truth.
After all, we need to look at the 'general trend' of US judgments, not individual cases. The United States is closer to an unwritten law system in which precedents are piled up to create norms, rather than a written law system in which legal provisions are stipulated one by one like ours. A simple comparison is difficult. However, at least if we seek advice from damage compensation experts in the United States, we decided that we would be able to fact-check to some extent closely.
I searched for an expert on 'torts law' in the United States that includes damages. Professor Christopher Robinett of Southwestern Law School is in fact one of several experts the team came into contact with. Professor Rovinette is a tort law authority who serves as the Chairman of the American Association of Law Schools (AALS) tort law and editor-in-chief of the 'Journal of Tort Law'. Professor Rovinette showed a deep interest in the controversy surrounding Korea's media arbitration law. I have summarized and organized the contents of the email Q&A with Professor Rovinet in the form of an interview.
Is the law really strong enough in the US to provide for up to five times punitive damages for media reports?
There is no law in the United States that allows for punitive damages equal to five times compensatory damages in defamation cases. There is no basis in US law to support the amendments to the Korean law. The U.S. Supreme Court sometimes interprets the U.S. Constitution as applying (in the broadest sense) a 'flexible cap' of single-digit multiples on punitive damages, but in reality a 1:1 ratio of compensatory and punitive damages is a 'reasonable cap' ' is explained.
Does this mean that the US has high standards for punitive damages?
It is clear that US law enforcement agencies apply a lower rate than the proposed amendments to the Korean law. More importantly, it seems much easier to get damages for defamation cases brought to the media in Korea than in the United States. The standard for punitive damages stipulated by the amendments to the Korean law is very low to the extent that it is 'serious negligence'. In the United States, only a few law enforcement agencies apply punitive damages for 'grave negligence'. Most law enforcement agencies have higher standards. Because of the 'freedom of expression' protected by the US Constitution, for certain types of plaintiffs, gross negligence may not be sufficient grounds for even recovering damages.
What if there were such standards in the US?
Because the US Constitution protects freedom of expression, any similar legislation in the US would likely result in strong opposition from the press.
In the end, our team's conclusion is that the United States is handling the media's punitive damages system very carefully.
Freedom of expression and the atrophic effect
Personally, I think the issue of how to legally sanction malicious false reports can and should be discussed.
Furthermore, there is also a need for social consensus on the level of compensation for malicious defamation of the media.
According to the paper 'Analysis of Time Series Data Related to Claims for Damages Caused by Media Reporting' published in July 2021 (Jung-Min Kim and Yong-Seok Hwang), the amount of compensation for media damages related to defamation has steadily decreased since 2005, when the Media Arbitration Act was enacted.
However, journalists may be concerned about the possibility that this legislation will erode even the normal critique function of the press.
In fact, freedom of expression is like thin ice.
No matter how right a word may be, when we anticipate an attack on it, we tend to keep our mouths shut.
If even legitimate reports are likely to be subject to legal and political attacks on their reports, not reporting may be a reasonable option for journalists.
Because there is nothing harder than getting caught up in a lawsuit.
Those in power, those who know the law, will also try to abuse it.
I don't think it's necessary to go to the United States for this part.
Our law enforcement agencies have similar interpretations.
The Constitutional Court describes this as a 'constrictive effect'.
In legislation regulating freedom of expression, this principle of clarity is of particular importance. This is because, in view of the role and function of freedom of expression in a democratic society, regulation of freedom of expression by unclear norms entails atrophied effects on expression protected by the Constitution. In other words, when it is unclear what the prohibited expression is, the subject of basic rights who is not certain that the expression he or she wants to perform is not subject to regulation- Except in cases where they have it—there is a high possibility that they will restrain themselves from expressing themselves for fear of being regulated. Therefore, the law regulating freedom of expression is constitutionally required to define the concept of regulated expression in detail and clearly so that the regulation does not have a debilitating effect on other protected expressions.
- Constitutional Court 1998.4.30.
95 Hunga 16
This is why legislation related to freedom of expression needs to be more precise and detailed.
In the end, I believe that the core of this controversy is not simply the 'power conflict' between 'politics' and the 'media' that takes place in the 'parliamentary space'.
It is close to the 'value debate' of 'freedom of expression' and 'atrophic effect' that takes place in 'community space'.
Will punishment be restrained for the sake of the community's 'freedom of expression', or will it be strengthened even at the risk of 'atrophic effect'?
…
Looking at the case of the United States, which the ruling party frequently cites, at least the latter does not seem to be the case.
<Source>
- Prof. Christopher
Robinett
(Southwestern Law School) Written Email Interview
- Kim Jung-Min and Hwang Yong-Seok "Time Series Data Analysis Related to Claims for Media Reporting", Media and Personal Rights Vol. 7, No. 1.
2021.
- Constitutional Court 95Hunga16 Decision
(Source: Song Hae-yeon, Yang Bo-won)