TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, August 31, 2021

Korean Media Law Amendment

In South Korea, the ruling Democratic Party is on the verge of passing a Media Law Amendment that authorizes punitive damages against the media of up to five times compensatory damages.  The standard for punitive damages would be intent or gross negligence.  The law is presented as a way to curtail "fake news," and the government defends the law on the basis that US law is even harsher regarding punitive damages toward the media.  

I don't know what the government has in mind, but, regardless, US law does not support the Media Law Amendment.  The USSC has interpreted the Due Process Clause of the US Constitution as establishing a flexible cap on punitive damages in the form of a single-digit multiplier of compensatory damages (no more than nine times).  Sitting as a common law court in a maritime case, however, the Court referred to a 1:1 ratio as a "fair upper limit."  Moreover, the Due Process limit is said to protect all types of defendants from a system of punitive damages that is widespread in the US.  As I understand Korean law, punitive damages are not generally available; they must be authorized by particular statutes.  Thus far, only a handful of specific statutory allowances of punitive damages have been enacted.  So, in this case, the authorization of punitive damages would be targeting the media specifically.  Additionally, I understand that Korean punitive damages have traditionally been set at a 3:1, not a 5:1, ratio.    

The bigger problem with arguing that US law is harsher against media defendants than the proposed Korean law is that it doesn't take the free-speech protections of the US Constitution into account, particularly the standard needed to prove liability for damages in defamation cases.  The Korean Media Law Amendment would allow punitive damages based on a standard as low as gross negligence.  Very few US jurisdictions allow punitive damages in any kind of case based on gross negligence; the vast majority require a higher standard.  Under US law, for certain types of plaintiffs in a defamation case, gross negligence would not be sufficient to recover even compensatory damages.  Interestingly, in a recent statement, Democratic Party leader Song Young-gil cited Gertz v. Welch as support for the Media Law Amendment, stating the US imposes "tremendously heavy punitive damages."  On remand, the plaintiff in Gertz was awarded $100,000 in compensatory damages and $300,000 in punitive damages.  Gertz, however, is widely understood as requiring "actual malice"--knowledge of falsity or reckless disregard for the truth--prior to receiving punitive damages, at least from a media defendant on matters of public concern.  The $300,000 award was made after the plaintiff proved the "actual malice" standard.  Gross negligence would not have been sufficient.  

Whatever the merits of the Media Law Amendment, and I'm dubious about them, US law does not support its passage.

Kyung-Won Lee of the Seoul Broadcasting System has the story (in Korean). 

Update:  Consideration of the bill has been postponed for a month for further discussion.

Legislation, Reforms, & Political News | Permalink


Post a comment