Press Freedom vs. National Security in South Korea
![handle is hein.journals/comlaw9 and id is 52 raw text is: other film by Godard, was the oc-
casion of another court battle. The
courts refused, in interlocutory
proceedings, to issue an injunc-
tion banning the film or suppress-
ing certain scenes, in the absence
of a manifestly unlawful act, which
is the legal condition of such in-
junctions. The court wisely noted
that judges could not and should
not become film critics or theo-
logians. It added that although a
number of persons would no
doubt be shocked by certain as-
pects of the movie, the gravity and
the context of such an attack was
not such as to warrant a restric-
tion, by an injunction, of freedom
of expression (TGI Paris, 28 Jan.
1985; Paris Court of Appeal, 13
May 1985, Gaz. Pal. 28 May 1985;
Cass. Civ. 21 July 1987; Gaz. Pal.
30 September 1987. Dijon Court
of Appeal, 22 March 1988, D. 1988.
I.R. 141; Gaz. Pal. 29-31 May
1988).
In 1988, Martin Scorsese's film
The Last Temptation of Christ led
several associations to ask the
court to ban the movie outright.
The movie contained, at the be-
ginning, a few words of explana-
tion and an extract of Nicholas
Kazantzakis's book by the same
name. The Court of Appeal, quot-
ing article 11 of the 1789 Decla-
ration of the Rights of Man and the
Citizen and article 10 of the Eu-
ropean Human Rights Conven-
tion, refused to issue an injunction
against the movie but ordered the
producer to add, on the posters, a
notation declaring that this was a
work of fiction.
Two elements of the court's
reasoning are of special interest
here: the first one is the use of the
principle of proportionality (itself
an echo of the case law of the
Conseil d' Etat and of the Consti-
tutional Council in France, and of
that of the European Court of Jus-
tice in Luxembourg and of the Eu-
ropean Human Rights Court in
Strasbourg). The second one, of
paramount importance concep-
tually, is the distinction between
the public and the non-public do-
main, leading to a difference of le-
gal treatment.
The same case law was applied
in 1989, when Salman Rushdie's
Satanic Verses was published. A
number of associations and indi-
viduals asked the court to ban it
and order its seizure, alleging that
it violated group libel law and that
it incited religious hatred and dis-
crimination. The court held that
this was not the case: Rushdie's
book was a novel, without histor-
ical pretension, a work of fiction
in which a constant stream of
words, images, actions and char-
acters moved about in space and
time. As such, it could not harm
the image of the Prophet. It might
be, the court added, that certain
pages of the book could shock a
believer and make him feel that
his faith was under threat. But
then nobody is forced to read a
book. Even assuming that the
book could have constituted a
blow against the respect to which
religious beliefs and feelings are
entitled, its seizure, an exception-
al infringement of freedom of
expression, could be warranted
only if the blow could have been
regarded as constituting a man-
ifestly unlawful act. This was not
the case.
The last example is no less rel-
evant. In May 1987, on the eve of
the opening of the Klaus Barbie
trial in Lyons (he was accused of
crimes against humanity during
the Holocaust), the first issue of a
new revisionist journal was put
on sale. Several articles repeated
the revisionist thesis negating
the Nazi genocide of the Jews. Ac-
cording to one of the authors, to
doubt the extermination of the
Jews is not only legitimate; it is a
duty, for it is a duty to look for his-
torical truth. A civil rights asso-
ciation and several survivors
associations asked the court to or-
der the suspension of the publi-
cation of the journal. The court
ordered a temporary suspension,
seeing -rightly-in such a pub-
lication, at such a time, a mani-
festly unlawful act warranting a
temporary ban.
Press Freedom vs. National Security in South Korea
BY KYU HO YOUM, PH.D.*
Freedom of the press does not ex-
ist in isolation. It must be recon-
ciled with other societal interests,
national security being one of
them. Thus, it is hardly surprising
that the South Korean govern-
ment has, in varying degrees, at-
tempted to restrict freedom of the
Korean press for national security
interests. But national security
cannot be used as a carte blanche
for the Korean government in
limiting Koreans' press freedom
at the slightest threat-real or
imagined.
In balancing national security
with press freedom in a democ-
racy, the role of the independent
judiciary is crucial. [A] nation's
press is free, not necessarily be-
cause of constitutional guaran-
tees, but because an unintimi-
dated judiciary protects the press
against government encroach-
ment. This observation, of
course, presupposes a function-
ing checks-and-balances struc-
ture of government, which en-
sures the independence of the
judicial branch from the other two
branches-executive and legisla-
tive.
While it is still debatable wheth-
er South Korea is a functioning
democracy in the sense of parti-
cipatory politics, the role of the
Korean courts in interpreting
press freedom in the context of
national security is worthy of an
analysis. This article addresses the
issue of how press freedom and
national security interests in a
geopolitically volatile Korea are
judicially balanced. It focuses on
the constitutional and statutory
status of press freedom vis-i-vis
national security in Korea and on
the judicial interpretations of
16 D] Communications Lawyer D] Spring 1991](ViewImageLocal?handle=hein.journals/comlaw9&div=21&collection=&method=preview&ext=.png&size=3)
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Press Freedom vs. National Security in South Korea
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