Growing Calls for Reforming Sentencing Guidelines
The background behind the prosecution's directive to respond more strongly to defamation crimes caused by extreme remarks and the dissemination of false information lies in the concern that social regulations have not kept pace with the rapid development of online personal media. In the legal community, there are opinions that the current law enforcement approach, which has broadly recognized freedom of expression, should shift toward strengthening responsibility, and that the sentencing guidelines of the courts should also be reinforced accordingly.
Recently, courts have been handing down fines and suspended sentences to so-called "cyber leakers" on YouTube who have persistently engaged in malicious slander by disclosing personal information of ordinary people or specifying false facts. On April 29, the Criminal Division 6-1 of the Suwon District Court (Presiding Judges Kwak Hyungseop, Kim Eunjung, and Kang Heekyung) dismissed the prosecutor's appeal and upheld the original sentence of a 3 million won fine in the appellate trial of YouTuber Lee Junhee (who operates under the name Gujaeyeok), who was indicted on charges of defamation under the Information and Communications Network Act. Lee was accused of defaming another YouTuber by mentioning their history of sexual offenses three times on his own YouTube channel.
On January 15, Judge Kim Saetbyeol of the Incheon District Court Criminal Division 11 sentenced A, the operator of the YouTube channel Taldeok Suyongso, to two years in prison with a three-year suspension and ordered the forfeiture of 200 million won. A was found guilty of defamation and insult under the Information and Communications Network Act for uploading videos that maliciously slandered celebrities such as Jang Wonyoung, a member of the girl group IVE, and making profits in the hundreds of millions of won.
However, there are concerns that fines in the range of several million won and suspended prison sentences have little deterrent effect. For YouTubers who earn hundreds of millions of won, the profits gained from spreading false information far outweigh the penalties, rendering such rulings ineffective. As a result, there are proposals to revise the sentencing guidelines for defamation by specifying "cases where economic gain is obtained" as a special aggravating factor. Cha Jina, a professor at Korea University Law School, stated, "The statutory penalties for defamation and insult under the Criminal Act are not low," but added, "Even in cases where defamation has led to victims being virtually ostracized from society and suffering serious infringements of their personal rights, perpetrators have often received only fines or suspended sentences, resulting in lenient punishment." Professor Cha said, "Rather than amending the law to increase statutory penalties, it is necessary to rationalize sentencing guidelines so that courts impose sentences commensurate with the degree of harm caused."
Along with revising sentencing guidelines, some argue that individual judges should also actively reflect these considerations in their sentencing decisions. On April 18, Woo Sangbeom, presiding judge of the Changwon District Court Criminal Division 6, sentenced B, the operator of the YouTube channel Jiphaengin, to three years in prison and ordered the forfeiture of 5.56 million won for violating the Information and Communications Network Act (defamation) and the Stalking Punishment Act. Judge Woo wrote, "Posting video content on a YouTube channel that labels victims as perpetrators without objective and sufficient verification goes beyond simple distortion of facts or defamation; it is a classic form of 'private sanction' that cannot be tolerated in modern society and constitutes a serious crime that threatens the foundation of the rule of law." Judge Woo further pointed out, "Given that the real motivation was advertising revenue from video views, despite claiming a public interest purpose, and that similar content was repeatedly produced, these actions are difficult to see as efforts to realize justice or raise social issues. Rather, as is typical of 'cyber leaker' YouTubers, the main aim appears to be maximizing personal gain by infringing on the personal and basic rights of others." He added, "Due to the nature of the digital environment, such infringements on honor can cause fatal damage that is difficult to recover through deletion or correction."
A lawyer who is a former High Court judge said, "There are aspects of cyber leakers who engage in extreme expressions for profit that are difficult to address under existing sentencing guidelines," and added, "The public calls for revising the guidelines reflect the demand to eradicate such crimes, so the courts should listen carefully." He continued, "Since court decisions serve as a kind of social guideline and direction for public behavior, it is time for active research and social debate on how to punish and regulate speech that incites violence or tramples on the personal rights of others."
A lawyer who is a former chief prosecutor said, "If prosecutors actively request trials and strengthen sentencing recommendations even in summary indictment cases, the courts will inevitably have to discuss sentencing guidelines," and added, "It seems that a trend is forming to strengthen responsibility for expressions that infringe on personal rights in society."
The Supreme Court Sentencing Commission established sentencing guidelines for defamation crimes in March 2019, which took effect on July 1 of that year. According to the Supreme Court Sentencing Commission, the current sentencing guidelines for defamation by specifying false facts are: up to two years and three months in prison for general defamation, and up to three years and nine months in prison for defamation through publications or the use of information and communications networks.
Hong Yoonji, Law Times Reporter
Lim Hyunkyung, Law Times Reporter
※This article is based on content supplied by Law Times.
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