English선거법실명제의견서표현의자유행정심의

Dear Mr. Frank La Rue, Mr. Maina Kiai, Ms. Margaret Sekaggya,

By 2012/12/12 No Comments

Office of the High Commissioner for Human Rights 

United Nations Office at Geneva 
1211 Geneva 10 
Switzerland 
 
 
 
11 December 2012 
 
 
 
 
 
Re: Freedom of Opinion and Expression, Freedom of Peaceful Assembly and of Association in the Republic of 
Korea 
 
 
 
 
 
Dear Mr. Frank La Rue, Mr. Maina Kiai, Ms. Margaret Sekaggya, 
 
 
 
The Korean NGOs’ Association for Freedom of Expression1 is sending a joint letter to you regarding 
situation of human rights defenders in the Republic of Korea focusing on their enjoyment of freedom 
of opinion and expression, freedom of peaceful assembly and of association. It is to share our grave 
concerns and update Special Rapporteurs on the situation, as a follow-up to the report submitted by 
Mr. Frank La Rue to the UN Human Rights Council in 2011. 
 
1 The Korean NGOs’ Association for Freedom of Expression is a network of human rights defenders, lawyers, and 
academics who support freedom of opinion and expression in the Republic of Korea. As of 8 December 2012, 
26 NGOs are members of this network and it has collected cases of violation of freedom of opinion and expression in the country. It also presented alternative policies to enhance enjoyment of freedom of opinion and expression in the Republic of Korea. 
 
2 Article 47(1) of the Framework Act on Telecommunications: A person who has publicly made a false communication over the telecommunications facilities and equipment for the purpose of harming the public interest shall 
be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won. 
 
 
 
1. Defamation 
 
 
 
The Government has taken no actions regarding the Special Rapporteur’s recommendation to 
remove defamation as a criminal offense. The Republic of Korean government continues to apply 
defamation on political issues. In June 2012, the Korea Resource Corporation is planning to file a 
defamation suit against Professor Park Chang-geun of Kwandong University, who has been critical of 
the Four Major Rivers Project. 
 
 
 
2. Freedom of opinion and expression on the Internet 
 
 
 
1) Although Article 47(1) of the Framework Act on Telecommunications2 has been ruled 
unconstitutional by the Constitutional Court on 28 December 2010, backlash was followed. The 
Ministry of Justice and the Supreme Prosecutor’s Office immediately expressed intention of 
proposing alternative legislation while several parliamentarians have proposed new legislations. In 
March 2011, the Police declared that spreading ‘false’ information regarding the landing of nuclear 
material due to the Japanese nuclear plant accident will result in penalties and filed a case against 
people accordingly. In November 2011, the Prosecutor’s Office declared that people who spread false 
information on Social Network Service (SNS) or the Internet in order to oppose the KORUS FTA will be 
detained in principle. 
 
 
 
2) Regulating online contents by intermediaries still continues. The Government has taken no 
actions to improve the situation and rather, it has demanded Internet Service Providers(ISPs) to 
 
strengthen filtering against cyber bullying since the decision by the Constitutional Court to strike 
down the real-name registration system on the Internet. 
 
 
 
3) The Korea Communications Commission(KCC) and the Korea Communications Standards 
Commission(KCSC) continue to restrict freedom of expression by regulating ‘unlawful information’. In 
May 2011, the decision to block a twitter account whose account name is suggestive of profanity 
against the president (2MB18nomA) stirred up controversy.3 Unfortunately, the case on the twitter 
account lost at the lower courts and in February 2012, the Constitutional Court also ruled that such 
administrative measure by the KCC and KCSC was constitutional. However, in October 2012, during 
the Universal Periodic Review(UPR) Working Group session, abolishing online censorship by the KCSC 
and transfer the functions of the KCSC into an independent commission was recommended in line 
with the Special Rapporteur’s recommendation. 
 
3 The New York Times, Korea Policing the Net. Twist? It’s South Korea, 13 August 2012, http://www.nytimes.com/
2012/08/13/world/asia/critics-see-south-korea-internet-curbs-as-censorship.html?Pagewanted =all&_r=1& 
 
4 Article 93(1) of the Public Official Election Act: No one shall distribute, post, scatter, play or run an advertisement, letter of greeting, poster, photograph, document, drawing printed matter, recording tape, video tape, or the 
like which contains the contents supporting, recommending or opposing a political party (including the preparatory committee for formation of a political party, and the platform and policy of a political party; hereafter the same shall apply in this Article) or candidate (including a person who intends to be a candidate; hereafter the same shall apply in this Article) or showing the name of the political party or candidate with the intention of influencing the election, not in accordance with the provision of this Act, from 180 days before the election day (the time when the reason for holding the election becomes final, in case of a special election) to the election day. 
 
 
 
4) The Internet real-name registration system under the Act on Promotion of Information and 
Communications Network Utilization and Information Protection, etc. was ruled unconstitutional by 
the Constitutional Court in August 2012. However, the real-name registration system is still effective 
under the Public Official Election Act(POEA). As a result, online media related to election that refuse 
to adopt the real-name registration system continue to be fined under this law. Also, under the 
reason to protect minors, all internet game users are subject to the real-name registration system. 
 
 
 
5) While intelligence agency such as the National Intelligence Service(NIS) is monitoring the entire 
Internet network, the National Assembly and the Judicial bodies do not monitor this properly. It 
further intimidates freedom of opinion and expression in the cyberspace. 
 
 
 
3. Freedom of opinion and expression before elections 
 
 
 
In December 2011, the Art 93 (1) of the POEA4 that has been restricting online election campaign 
was ruled partially unconstitutional by the Constitutional Court. As a result, the POEA was revised in 
February 2012 and it became possible to conduct online election campaign. In addition, the online 
real-name registration system was ruled unconstitutional and the National Election Committee (NEC) 
submitted recommendation to revise the POEA to that effect to the National Assembly. However, due 
to ‘concerns’ that online election campaign might become overheated, revision of the POEA, made in 
February 2012, authorised the NEC to request ISP to handover identity of certain online article 
writers. 
 
 
 
Offline campaign for an election is also widely restricted. The POEA still restricts human rights 
defenders from expressing opinions on election related issues, even if they are mere repetitions of 
the organization’s previous stance. For example, human rights defenders against the KORUS FTA have 
been indicted for peacefully expressing anti-FTA agenda by peaceful gathering and collecting 
 
petitions against a candidate who supported FTA during the General Election. 
 
 
 
4. Freedom of Peaceful Assembly and Demonstration 
 
 
 
1) The Government is not complying with the Special Rapporteur’s recommendations to revise the 
Assembly and Demonstration Act and make law enforcement agencies adhere to the United Nations 
Code of Conduct of Law Enforcement Officials and the Basic Principles on the Use of Force and 
Firearms by Law Enforcement Officials. The Assembly and Demonstration Act still bans peaceful 
assemblies with vague reasons and operate as a de facto authorization system. The police sprayed 
water mixed with tear gas to peaceful but unregistered human rights defenders. The police also use 
excessive physical power to forcibly disperse peaceful assemblies. Meanwhile, the police do not carry 
name tags to identify them and even if they have, they wear various protective devices which make it 
difficult to verify their name and identity. On 26 April 2012, the Supreme Court ruled that it is 
unlawful to forcibly disperse peaceful assemblies even if it is not registered. Regardless, the police 
continue to apply broad measures to forcefully disperse unregistered assemblies. 
 
 
 
2) Peaceful Assemblies against the KORUS FTA 
 
On 14 November 2011, approximately 1,200 human rights defenders gathered in the Yeouido, where 
the National Assembly is located, in order to demonstrate against the KORUS FTA. When about 900 
participants tried to occupy the streets, the police requested to disperse and warned that they would 
use water cannon. The police used 12,000 litres water on five occasions. In the process, Ms. Heejin 
PARK, a joint representative of the Korean Youth Solidarity suffered from a ruptured eardrum 
because the police aimed water cannon above her chest. Ms. Kangsil LEE, a co-representative of the 
Korea Progressive Solidarity, fell on her back due to the water pressure and had a minor concussion. 
She is in the process of suing the Government for compensation. Average temperature of November 
in the Republic of Korea is 6 degree Celsius and in November 2011, the Meteorological 
Administration issued cold wave warning at the time. This meant that human rights defenders had to 
suffer from severe cold when water cannons were used against them. The human rights defenders 
who suffered from excessive use of police force filed a complaint to the National Human Rights 
Commission of Korea (NHRCK). On 27 September 2012, the NHRCK decided that using water cannon 
in winter critically lowers body temperature and is a great threat to life. Therefore, it is an excessive 
use of equipment by law enforcement officers. The NHRCK recommended the police to establish a 
standard for using water cannon that takes weather into account and there should be executive 
orders or legislation to that effect. 
 
 
 
5. National Security Act 
 
 
 
1) Since 2008, arbitral interpretation of the National Security Act has increased. According to the data 
provided by the Supreme Prosecutors Office, cases that violate the National Security Act were 46 (16 
detention) in 2008 but increased to 56 (18 detention) in 2009, 97 (32 detention) in 2010, 90 (19 
detention) in 2011. According to the police data, people who were arrested for violating the National 
Security Act has increased from 35 in 2006 to 150 in 2010 but only 60 of them were actually indicted 
(40% indictment rate). 
 
 
 
2005 
 
2006 
 
2007 
 
2008 
 
2009 
 
2010 
 
Arrest 
 
33 
 
35 
 
39 
 
40 
 
70 
 
151 
 
Indictment 
 
32 
 
33 
 
36 
 
37 
 
33 
 
60 
 
Rate (%) 
 
97 
 
94 
 
92 
 
93 
 
47 
 
40 
 
Detention 
 
12 
 
 
12 
 
11 
 
15 
 
21 
 
Rate (%) 
 
36 
 
23 
 
31 
 
28 
 
21 
 
14 
 
 
 
*Source: Ms. Jeong-hee Lee, Member of Parliament in 2010, Data submitted by Police Authority 
 
 
 
Of special note is the increase of the violation of the Article 7 of National Security Act which is on 
praise and incitement. In particular, the number of people who were charged for violating the Article 
7 by making North Korean related comments on the Internet has increased from 5 in 2008 to 82 in 
2010. A number of websites that were forced to shut-down as they contained ‘pro-North Korean’ 
contents has increased from 18 in 2009 to 85 in 2010, and to 178 as of October 2011. Also, the police 
requested to delete 80,449 online articles in 2010 and 67,269 in 2011 under the reason of pro-North 
tendencies. This is a huge increase from 1,793 in 2008 and 14,430 in 2009. 
 
 
 
2) On 23 August 2011, the Seoul Central District Prosecutors’ Office indicted five people for violating 
the Articles 3 and 9 of the National Security Act by organizing anti-State organization called 
“Wangjaesan.” Prosecutors claimed that these people are linked to the Unit 225 of North Korea 
which is notorious for espionage since the early 90’s, organized the subversive organization 
“Wangjaesan,” and had plans to destroy military facilities in 2014 in order to use Incheon as a violent 
revolutionary foothold. The Prosecutor’s Office reported these allegations before trial and as a result, 
the “Wangjaesan” suspects were branded as pro-North Korea leftists’ subversive dissidents and 
suffered from losing livelihood. The National Intelligence Service summoned over 130 people as 
witnesses and human rights violations such as threatening and placating were happened during the 
investigation process. On 23 February 2012, the Seoul Central District Court pronounced not guilty to 
the forming of anti-State organization and currently, the appeal process is ongoing as the 
Prosecutor’s Office appealed the case. 
 
 
 
3) On January 11, 2012, Mr. Jung-geun PARK, a photo studio owner, was arrested for retweeting a 
post from a North Korean twitter account “uriminzokkiri”. He also posted a satire about North Korean 
leaders on his twitter. On 31 January 2011, He was indicted for violating the National Security Act and 
was bailed on 20 February 2011. On September 2011, his photo studio was searched for over 10 
hours and his computer hard disk was copied for further investigation. The search warrant said “as of 
July, Mr. Park has more than 2,000 twitter followers. The twitter is a SNS service that can be a 
powerful propaganda tool even if there are just 4 followers.” However, Mr. Park is not a supporter of 
North Korea and is a member of the Socialist Party, which is critical to North Korea. He stated that he 
does not agree with North Korea’s political system but he was interested in their culture while 
insisting that he has a right to information and freedom of expression. On 21 November 2011, Mr. 
Park was sentenced to 10-month imprisonment with a stay of execution of 2 year for violating the 
Article 7 of the National Security Act. 
 
 
 
4) Civil societies are also oppressed through the National Security Act. Since 2011, there has been a 
wide ranging of searching, seizure and investigations of organizations including the Korean 
Progressive Federation, the Korean Teachers and Education Worker’s Union, Solidarity for Peace and 
Reunification of Korea, and the Federation for Peaceful Reunification. 
 
 
 
6. Public Officials 
 
 
 
Since the Special Rapporteur’s report in 2011, there have been no changes to the Public Officials 
Regulations (Code of Conduct), which bans all criticisms against the Government policies, and the 
State and Local Public Officials’ Act, which bans all forms of political expression. The Government 
continues to broadly interpret the Constitutional duty of political neutrality to limit freedom of 
political expression of public officials. In particular, with the Presidential election will be held on 19 
December 2012, the Government bans civil servants from participating in election campaign or 
political party related activities, based on the State and Local Public Officials’ Act and the Public 
Officials’ Trade Union Act. In addition, based on provisions of the Political Party Act, the Political Fund 
 
Act and the POEA that bans public officials from joining, funding and promoting political parties, 
public officials’ trade unions are banned from participating in political activities which is crucial for 
promoting rights of union members. 
 
 
 
7. Teachers 
 
 
 
On 6 May 2010, 183 teachers and 90 public officials were indicted for joining the Democratic Labour 
Party and paying party membership fee. This was few weeks before local election which was held in 
June 2010. Among 134 teachers who were working at public schools at that time and were indicted 
by the Prosecutors’ office, the Ministry of Education expelled 50 teachers who also joined political 
declarations, and dismissed the rest (84 teachers). For most indictments, the Seoul Central District 
Court pronounced not guilty or acquittal based on lack of evidence or passing of the statute of 
limitation. For financially supporting a small amount to the Democratic Labour party, most were 
sentenced around 350,000KRW(350USD). As a result, it seemed that indictment against 273 people 
was improper. However in July 2011, the Prosecutor’s Office indicted 1,352 teachers and 295 public 
officials for the same charges. This was the largest number of indictment for a single case. 
 
 
 
8. Media Independence 
 
 
 
The president of various mass media including KBS, MBC, YTN, and The Yonhap News Agency have all 
been replaced by supporters of President Lee Myung-bak under his administration. As a result, 
Korean media’s independence has deteriorated and news critical of the Government are not properly 
covered by media. Workers of five media went on strike from January to July 2012 calling for fair 
reporting and resignation of parachute appointment by the Government. As a result, 448 media 
workers were fired or received disciplinary measures. Despite such struggle, the “parachute” 
presidents have not resigned and the media’s autonomy has not been restored. It was reported that 
regarding the upcoming presidential election, the Assemblymen from the Saenuri Party(ruling party) 
visited three major broadcasting companies and requested to allocate more time to broadcast ruling 
party. 
 
 
 
In July 2009, amendments to the Act on the Promotion of Newspapers, etc. and Broadcasting Act 
were adopted and in February 2012, the Media Rep Act was adopted. These legislations, passed 
exclusively by members of the ruling party, allow cross ownership of newspapers and broadcasting, 
resulting in increased monopoly of public opinion and gave birth to “media representatives” that are 
controlled by large broadcasting companies. 
 
 
 
9. National Human Rights Commission of Korea (NHRCK) 
 
 
 
On 16 July 2012, the National Assembly hearing was held for re-appointing Mr. Hyun Byeong-chul as 
the Chairman of the NHRCK. The hearing revealed that while Mr. Hyun served as the Chairman of the 
NHRCK, he endangered the autonomy of the NHRCK; frequently meeting with several insiders of the 
Presidential office; his way of running the NHRCK was undemocratic. Even one disabled person was 
dead while demonstrating for the autonomy of the NHRCK due to pneumonia. Mr. Hyun gave orders 
to shut down elevators and heating facilities during demonstration (other demonstrators were 
criminally charged). Despite opposition from the National Assembly and civil societies, President Lee 
Myung-bak re-appointed Mr. Hyun as the Chairman of the NHRCK. 
 
 
 
10. Soldiers 
 
 
 
1) Since the Special Rapporteur’s report in 2011, there has been no change in policy regarding 
 
banning of certain books within the military units and barracks. The Ministry of Defense continues to 
designate certain books as “seditious” and blocks soldiers’ access to those materials. In addition to 
books, soldiers were reported to be blocked from certain smart phone applications or twitter 
accounts that were considered ‘critical to the Government’ or ‘pro-North Korea’. Also, soldiers who 
post critical comments about President Lee Myung-bak have been criminally charged. According to 
the data submitted by the Ministry of Defense to the National Assembly Legislation and Judiciary 
Committee, 50 soldiers have been criminally prosecuted with insult or defamation on SNS since 2010. 
 
 
 
2) ‘Seditious’ application in the military. 
 
On February 2012, several smart phone applications, including ‘Naneun Ggomsuda’, ‘Count Down 
President’s Term, ‘Southern Headquarters of National Federation for Unification’, ‘Patriotic Front’, 
‘Smart Candlelight’, were designated as seditious material and off-limit to military personnel. 
Currently, there are no legal conditions to limit soldiers’ freedom of expression enacted by the 
National Assembly. Instead, there is a regulation that specifically limits the fundamental rights of 
soldiers such as the freedom of expression (e.g. The Article 16(2) of the military code of conduct: 
restrictions on reading and carrying seditious books). Even though access to books and information is 
a Constitutional right that cannot be limited by legislation, it is in fact limited by provisions of an 
executive order, which is lower than the Constitution or legislations. The idea of seditious smart 
phone applications is an extension of banning seditious books. 
 
 
 
3) Criminal prosecution of a captain for insulting President Lee 
 
On December 2012, Army Captain A(aged 28) posted a critical message on his twitter about the 
President regarding the Government’s plan to privatize the Incheon Airport and referred the 
President as a rat. He also posted a message about allegations concerning the fraud and 
misappropriation of funds in the process of purchasing the President’s retirement home. The military 
Prosecutor’s Office charged Captain A with defamation about the senior officer. The case is currently 
pending at the Military Court. 
 
 
 
11. Detainees 
 
 
 
On February 2012, the Constitutional Court ruled that the Art 65(1) of the Enforcement Ordinance of 
Administration and Treatment of Correctional Institution Inmates Act, which requires all letters sent 
from correctional facilities to be submitted unsealed, is unconstitutional. The Court pointed out “if 
letters are submitted unsealed, it would facilitate security checks by correctional officers. However in 
the process, correctional officers have easy access to the contents of the letters. One cannot freely 
express or exchange his/her opinion and emotions if he/she knows that the letters will be read by 
others. This will refrain detainees from expressing their opinion and emotions and this has same 
effects as censoring contents of the letters” 
 
 
 
On September 2012, the Ministry of Justice announced revised proposal to the enforcement 
ordinance of Administration and Treatment of Correctional Institution Inmates Act in order to keep in 
line the Constitutional Court’s decision. However, while the proposed revision allows sealing of 
letters in principle, it also provides broad exceptions. Therefore, many people claim that it will 
actually invalidate the Constitutional Court’s decision. 
 
 
 
12. Workers 
 
 
 
The ILO Committee on Freedom of Association and the UN Committee on Economic, Social, and 
Cultural Rights repeatedly recommended to either stop criminalizing obstruction of business, or 
applying obstruction of work charges against workers who are under strike as it breaches workers’ 
 
right to collective action. The Article 314(1) of the Criminal Code is on the obstruction of business. 
However, criminalising obstruction of business continues to serve to restrict workers’ strike. On 
March 2011, the Supreme Court ruled that “strike as a collective action is not always considered as 
obstruction of business. Obstruction of business applies only when the strike was unexpected and 
causes a great confusion or monetary loss to employer’s business operation to the degree where it 
can be said that employer’s free will to continue business operation has been oppressed.” This new 
judgment is more favorable to worker’s strike. However, the criteria are still vague and the 
possibilities of criminalizing strikes still remain. 
 
 
 
13. Youth 
 
 
 
Freedom of expression of youth is still in a stalemate in the Republic of Korea. Laws regulate youth’s 
participation in election and political party activities. In April 2012, one youth had to delete his 
twitter post endorsing a candidate for General Election after receiving warnings from the National 
Election Commission. Also, due to legal limitation against youths becoming political party members, 
one party was required to expel its youth members. Participating in local politics is also limited. As a 
result, many youths are barred from becoming active subject of local self-governance. 
 
 
 
There are also no institutional measures to include youths in school management. Most school rules 
exclude students from participating in its management, require permission for students’ assembly 
and have penalties for violations. 
 
 
 
14. Youth protection and contents regulation 
 
 
 
1) Starting from 20 November 2011, the shut-down system was implemented, which requires all 
online game websites to shut down accounts belong to under 16 from 0 to 6 AM. Game companies 
are required to register real name of users to implement this measure. These regulations limit 
youth’s right to cultural activities and expression. 
 
 
 
2) The Ministry of Gender Equality and Family has strengthened censorship for music under the 
reason to protect youths. Most of these cases are censoring lyrics related to alcohol or smoking, 
without any consideration of the context. After the singer Psy became famous globally, the Ministry 
decided to delist over 300 of his songs from the list of unwholesome media for juveniles. This shows 
that the listing unwholesome media for juveniles have been highly arbitrary. Since the amendment of 
the Article 50 of Promotion of the Motion Pictures and Video Products Act, there has been renewed 
censorship of music videos. 
 
 
 
15. Movies 
 
 
 
Recently, the movie, “Self Contradiction: Zeitgeist and Participation” received “limited viewing” rate. 
If a movie receives limited viewing rate, the movie can only be played in special theatres and all types 
of promotion of the movies are banned. Currently, there is only 1 theatre (120 seats) that are allowed 
to show such movies and even that theatre is near bankruptcy due to promotion limitation. As a 
result, receiving such rate is tantamount to banning the movie. The problem with this system is that 
it limits adults from seeing certain non-pornographic movies and that the criteria for rating are vague. 
In this movie, the reason for designating limited viewing was because it contained a scene where a 
mannequin resembling a presidential candidate Ms. Geun-hye PARK is beheaded. That scene was 
considered to be “unacceptably violent.” Considering that other movies contain many beheading 
scene but still do not receive the limited viewing rate, it suggests that such labelling was done on 
political motives. This shows that the limited viewing system can be used to limit political expression 
 
in movies. 
 
 
 
We would like to call on your continued attention to the situation of human rights defenders in the 
Republic of Korea, especially restrictions on freedom of opinion and expression, and freedom of 
peaceful assembly and of association. If you have any further questions or need a clarification, please 
do not hesitate to contact us at any time. We do hope this letter will contribute to your work. 
 
 
 
Yours Sincerely, 
 
 
 
 
 
Prof. Ho-joong Lee 
 
Chairperson, The Korean NGOs’ Association for Freedom of Expression 
 
 
 
 
 
For further inquiries or clarification, please kindly contact to: 
 
Ms. Ranghee Kim 
 
Coordinator, The Korean NGOs’ Association for Freedom of Expression 
 
Email: rang2ya@gmail.com, Phone: +82 (0)16-269-8458 
 
Ms. Gayoon Baek 
 
Coordinator, People’s Solidarity for Participatory Democracy 
 
Email: pspdint@pspd.org, Phone: +82 (0)2-723-5051 
 
 
 
 
 
 
 
 
 
*The Korean NGOs’ Association for Freedom of Expression 
 
Amnesty International Korea, Workers’ Solidarity All Together, Cultural Action, Christian Media Association, 
MINBYUN-Lawyers for a Democratic Society, Democratic Legal Studies Association, MINKAHYUP HUMAN 
RIGHTS GROUP, Buddhist Human Rights Committee, Seoul Human Rights Film Festival, People’s Coalition of 
Media Reformation, Incheon Human Rights Film Festival, The Korea Press Consumerism Organization, The 
Coalition Human Rights NGOs in Korea, SARANGBANG Group for Human Rights, Korean Government 
Employees’ Union, Korean Teachers and Education Workers Union, Korean Confederation of Trade Unions, 
National Union of Mediaworkers, Korean Progressive Network ‘Jinbonet’, People’s Solidarity for Participatory 
Democracy, Catholic human rights committee, Youth Rights Action ‘Asunaro’, The Center for Freedom of 
Information and Transparent Society, Korean Gay Men’s Human Rights Group Chingusai , Writers Association of 
Korea, Korea Alliance of Progressive Movement 
 
 

2012-12-11