Publish and be damned is not a wise choice

2010-04-05 18:54

"Korea`s laws on libel are confusing and open to abuse," one of the lawyers contacted for this article told The Korea Herald.
"They are a weapon that can be used by innocent victims of media abuse, and equally they can be used as a shield to protect the guilty, often allowing them to commit repeat offenses."
And falling afoul of these laws is so easy, as American Joe McPherson is finding out.
McPherson, is an English teacher, writer, and a well-known and respected blogger. His blog, "ZenKimchi" has been extensively quoted around the world, and is full of useful and interesting facts about Korea, especially Korean food.
In the words of fellow blogger, Michael Hurt from "Metropolitician," Joe is a good guy. "He`s got much love for Korea, as evidenced by his site, his love of Korean food (he has even been interviewed by The New York Times), and has done much to extol the virtues of Korean food to both Westerners who come here as well as to the outside world. He has even been in a book talking about all the great things Korea has to offer."
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McPherson certainly doesn`t seem to fit what is largely an unfair stereotypical image so often portrayed in the local media of an unqualified language-tourist, just here for the money, the parties and the girls. Yet, he is now facing the possibility of a law suit for alleged libel. If a fine of more than 2 million won ($2,100) is imposed, he could also face the prospect of deportation.
"Somehow, if an employer doesn`t pay you your wages or severance, or takes money from your paycheck without explaining or having you agree to it, they can pretty much get away with it," McPherson wrote. "Even if you win your case (at the Labor Department and civil court) there is little legal framework to force the employer to pay you."
In July 2006 McPherson filed a complaint against his hagwon for failure to pay his end-of-contract severance money.
"In August the Labor Board determined that the hagwon had to pay me everything I was due," McPherson said. "It came to about 6 million won, so we are not talking about a small amount of money here."
But having an official and legal piece of paper saying you are due this money, and then actually getting the money, are two quite different things.
In February 2007 McPherson finally went to civil court, where the judge not only upheld the Labor Board decision, but awarded McPherson a further 2 million won, bringing the total to 8 million won. The hagwon is still refusing to pay, and has lodged an appeal. An end to the process is nowhere in sight.
"Yet if you want to complain about it on the internet, which is often the only venue for us, it`s a crime," McPherson told The Korea Herald. "I received notice that the hagwon filed a complaint and I am being investigated by the police for criminal libel."
Brendon Carr, a foreign legal consultant with law firm Hwang Mok Park, had some striking comments on Korea`s libel laws. "Unlike the United States, Korea does not exalt free speech as a constitutional right," Carr told The Korea Herald. "However, the Korean Constitution does recognize a right to reputation. In other words, reputation enjoys higher standing under Korean law than free speech. This same idea is common in European countries; America is unique in the degree to which speech is protected. It`s possible that Korea is unique in the degree to which reputation is protected."
Essentially, the terms of Article 309 of the Korea Criminal Code say that writing something that can hurt the reputation of another, regardless of whether or not it is true, can leave the writer/publisher open to prosecution.
"The Art. 309 is basically a club by which the government and business interests muzzle the press," Carr said. "More than 100 criminal complaints are lodged each year against press outlets, and hundreds of cases go to the Communications Ethics Board for non-criminal resolution of disputes. Accordingly, the press here is much more cautious about reporting things where the identities of the wrongdoers may be discovered."
However, the Criminal Code does include the following exception contained in its Article 310: If the facts published are true and disclosed solely for the public interest, the act of publishing shall not be punishable.
Currently this privilege does not extend to bloggers on the internet.
"Truth is only a defense for the press, not for the general citizenry. And the publisher must prove the disclosure was solely for the public interest," Carr said, "and this is where most of them get punished."
The Korea Herald outlined a couple of possible story scenarios relating to cases such as McPherson`s, and "hagwons from hell."
Carr had these words of caution, "The Article 310 exception of `public interest` is much narrower than you think. My own judgment is that there is no public interest served by telling the story of the hagwon from hell."
English teachers, Carr said, "are not `the public` - they are a small segment of it. The rest of the public has no interest in being warned about how these hagwons may or may not treat their foreign employees."
The Korea Herald would be forced to disagree. Estimates vary slightly on the number of foreigners working legally as English teachers here in Korea, but each and every one of them comes into contact with hundreds of Korean children on a daily or weekly basis.
A teacher who is being victimized or treated unfairly by a hagwon is an unhappy and disgruntled teacher. No matter how professional that teacher may be under normal circumstances, when they are being cheated out of their lawful earnings, when they feel they are being let down by the legal system, then their performance will obviously suffer. A distracted teacher is a poor teacher, and consequently the students will suffer too.
According to some estimates, Korean students spend over 15 trillion won a year on private English classes. This is based on 11.2 million students spending an average of 1.2 million won a year for classes in hagwons or private English teachers. Korea spent the most on private education in 2006 among the 30-member OECD, accounting for 2.9 percent of GDP.
A Labor Department official recently told The Korea Herald that she saw "so many English teachers" in her office, and said hagwons - "the bad ones" - knew how to manipulate the system. "The process takes so long, many English teachers eventually just give up," she said. "The law needs to be changed. Hagwons must be held accountable."
It is, therefore, impossible to consider the case of English teachers in a vacuum, saying they are only a minority segment of "the public." They are a significant minority who come into contact with, as we have just mentioned, more than 11 million students on a daily basis, and are in the front line of a multi-trillion won industry. Consequently, anything that happens to these teachers, especially if it is at the hands of unscrupulous hagwon owners, and if it has the potential to affect the quality of the education they provide, should most certainly be of paramount public interest.
Parents certainly have the right to know if the hagwon that has enrolled their children, that is taking their money and promising a quality education, is or has been involved in legal disputes with its teachers. A hagwon that shows little respect for its teachers, and even less respect to orders from the court, is unlikely to show much respect to its students or their parents.

By Chris Gelken

(chrisgelken@heraldcorp.com)

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