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Sep 6, 2011

Protecting the Right to Free Speech? MBC’s PD Notebook on Trial

An interesting case has worked its way through the courts on free speech in Korea.  As we all have become aware, not one human case of mad cow disease has been linked to the consumption of U.S. beef.  With the Lee Myung-Bak Administration reassurance that Mad Cow disease would not affect citizens, the Administration decided in 2008 to resume the import of U.S. beef with strict restrictions.

MBC's “PD Notebook” emphatically asserted that U.S. beef poses a risk to the Korean population.  The argument was backed up by numerous mistranslations of U.S. data and information that was later found to be false or misleading by other news sources, the prosecution, and the courts.

The program was credited for fueling a 2 million-person demonstration in the capital. The march, on many occasions, turned violent.

Many demonstrators were schoolchildren brought to the demonstration by their teachers, college students that were organized by professors and even housewives and office workers.  The later two categories seemed to be heavily influenced by the PD notebook program.

Most of those less influenced by liberal hysterics, at the time, realized that this was nothing more than radical liberals utilizing the sentiment of a fickle population to destroy the presidency of Lee. The liberals won. President Lee Administration has been crippled through most of his five-year term.

Oh, still not one person has contracted mad cow disease in Korea or the United States.

The investigation into the program led to the realization that much of the key evidence in the program was either falsified or manipulated.  The realization led to lawsuit and prosecutions.

The Korean Supreme Court, recently, held five producers of the program not guilty of criminally defaming former Minister of Food, Agriculture, Forestry and Fisheries, Woon-chun CHUNG. The Supreme Court opined that:

We need to be cautious when punishing journalists in the form of personal defamation against public officials who were engaged in policy decisions [And, Since]. . .news reports acknowledged the iteration of false information [thus] there is no direct bearing on the reputation of public officials and it cannot be viewed as malicious attacks, the original ruling was justified in determining that [defendants] are not liable for defamation.

The Court seems to have employed the American Public Figure test.  Thus, a person may only be found guilty, in the United States, of defamation if the statement was false and iterated with “malice.”  Malice is defined as either a “reckless disregard for the truth” or “knowledge that the statement was false.” It seems evident that if a plaintiff filed a civil suit against PD Notebook in the states, then, PD Notebook would be found liable.

Not withstanding the fact that this is a criminal matter (some states still punish defamation through criminal courts), in Korea, say sorry and admit your fault, and you will not be held criminally liable for defamation?

Is this the right solution for Korea?
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SeanHayes@ipglegal.com