[Square] The Media Punishment Law Must Be Withdrawn

Choi Joon-sun, Honorary Professor at Sungkyunkwan University School of Law

Under this government, the introduction of the ‘punitive damages system’ is rushing ahead. This system has already been introduced in more than 20 laws. After incorporating it into the Serious Accidents Punishment Act passed last January, on the 27th of last month, the National Assembly’s Culture, Sports and Tourism Committee’s bill review subcommittee passed the Media Arbitration Act. The opinions of opposition party members were thoroughly ignored under the ruling party lawmakers’ unilateral actions.

For false or fabricated reports caused by intentional or gross negligence, punitive damages of up to five times the amount of actual damages will be imposed. The minimum compensation amount is set at one ten-thousandth of the media company’s previous year’s sales, and the maximum at one thousandth of that amount. If it is difficult to calculate the compensation amount, it is set at up to 100 million won.

The punitive damages system originally did not exist in civil law systems like Korea’s; it is a system from common law jurisdictions such as the United States, the United Kingdom, and Canada. It mainly punishes malicious torts with monetary penalties, whereas in Korea, such cases are punished by the state through criminal penalties or fines and surcharges. Therefore, imposing punitive damages could result in double punishment alongside criminal penalties.

Moreover, since punitive damages are based on illegality rather than actual damages, there should be no minimum or maximum limits. However, the Media Arbitration Act strangely sets both upper and lower limits. Differential damages based on sales aim to punish legitimate media companies that have succeeded through good management, while turning a blind eye to and fostering fake, low-quality media outlets that hide their sales and spew harsh criticism.

In the United States, there is no crime such as defamation by stating facts, but Korea has it. Punishing fake news under this charge is sufficient. Furthermore, defamation and spreading false information can also be punished under existing laws.

Since there are already sufficient deterrent measures in the criminal law, introducing new, stronger punitive regulations violates the constitutional ‘principle of proportionality.’ The provision allowing victims of internet news to request blocking of article access from media companies also lacks specificity, violating the constitutional ‘principle of clarity.’

What is particularly concerning is that the punitive damages under the Media Arbitration Act require ‘intentional or gross negligence’ in reporting, but the burden of proof that ‘intent or gross negligence’ does not exist is placed on the media company, not the plaintiff. How can one prove the presence or absence of intent, which is a matter of internal will? Once the plaintiff files a lawsuit, that’s it; the plaintiff can just watch as the media company scrambles to put out the fire.

There is nothing to lose and no risk involved. Civil lawsuits such as claims for damages are freedoms and rights of citizens. Even if a wrongful claim for damages is made, it is a civil matter, not subject to criminal punishment or false accusation charges. Therefore, the possibility of frivolous lawsuits is very high. Politicians and other power holders who claim damages literally hold a ‘winning hand.’

The ruling party is even pushing for legislation on class action lawsuits. If punitive damages are sought through class actions, the amount of damages could become astronomical.

Unless the intention is to muzzle the media and completely block reports on suspicions about power institutions and public figures?thereby destroying the media’s role in monitoring and checking power and regressing democracy?this bill, which is a ‘media punitive law’ and a ‘media annihilation law,’ must be withdrawn.

Choi Joon-sun, Professor Emeritus, School of Law, Sungkyunkwan University