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
8
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
