[The Korea Herald] Does Korea have enough Internet freedom?

South Koreans often point out that they have one of most the Internet-connected societies in the world.

More contentious is just how free the country’s Internet users are to use it as they choose. Korea made Reporters Without Borders’ “Enemies of the Internet” list for a fourth straight year on March 12, alongside the likes of Sri Lanka, Tunisia, Eritrea and the United Arab Emirates as a country “under surveillance,” the category before “enemy.”

The report noted that removal-of-content requests by the president-appointed, nine-member Korea Communications Standards Commission have soared since its establishment in 2008. Such requests to Internet service providers, backed by the threat of fines for noncompliance, rose from about 1,500 annually before 2009 to 80,449 in 2010. Reasons for removal included content being deemed defamatory, obscene, or damaging to national security.

Park Kyung-shin, a commissioner as well as critic of the KCSC, paints a grim picture of Internet censorship in one of Asia’s most vibrant democracies.

“Recently, the prosecutors’ office arrested a Twitter user who merely retweeted North Korean propaganda with his parodic comments. This is how intensive the regulation is, even without the KCSC. The same with obscenity. As to the protection of children, it should be parents’ responsibility not administrative bodies whose across-the-board or self-identifying rules always restrict adults’ free speech,” Park said Voice.

Park says that the right to free expression online is particularly important in this country.

“Korea is a very hierarchical society. Internet has provided the rare opportunity for people to communicate with one another on equal terms. Korea will lose an opportunity for social and cultural advancement if Internet freedom is lost,” he said.

Park himself became a target of his own commission over his blog highlighting the kind of content the KCSC regularly seeks to remove. The offending material was a non-pornographic picture of a man’s genitalia. Park has since been indicted by the prosecution on obscenity charges he believes are politically motivated.

The KCSC declined to answer questions on a number of issues including its handling of Park’s case, its justification for “censoring online content” and the U.N. Human Rights Council’s Special Rapporteur on Freedom of Expression’s strong criticism of Internet censorship here.

In a statement to The Korea Herald, the Korea Communications Commission, a government body distinct from the KCSC that sets communications policy, addressed rapportuer Frank La Rue’s criticism.

“The Korean government is very firm about its efforts to protect freedom of expression as well as efforts to minimize restrictions on freedom of expression. … The report was biased because it only took into account special cases and as a result the report evaluated Korea’s freedom of expression in a biased way. La Rue’s report seems to lack an appreciation of Korea’s special characteristics of the Internet regulation environment and review system,” said a spokesman.

The spokesman also noted that the Constitutional Court had recently upheld the constitutionality of Korea’s regulatory framework.

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Lee Kye-cheol, the new chief of the Korea Communications Commission’ speaks at his inauguration in Seoul earlier this month. (Yonhap News)

After being sent a revised list of questions, KCSC spokesman Han Tae-seon defended the body’s role in safeguarding against harmful content, denying that it impinges upon freedom of expression.

“Although people are free to express themselves, they should not use profanities or distort the truth because this may harm public discourse,” Han said.

“Freedom of expression is a constitutional right and so it is not a question of ‘striking a balance.’ Nothing we review or restrict is to violate the right to freedom of expression.”

Han added that the KCSC does not censor content, but merely makes requests of websites and Internet providers, some of which are not followed. As evidence of this, he pointed to a 2008 KCSC request, put to him by The Korea Herald, that a website “purify language and refrain from exaggerated expressions” over a message calling President Lee “2MB” and a “sly person.” “2MB” refers to President Lee’s initials, but can also be interpreted as a derogatory reference to his intelligence.

“We sent a request to the caf manager and it was up to him to decide how they would respond, but as far we know after we checked the posting again little had been changed,” Han said.

He said that particular request had been made on the grounds of “other necessary measures,” as provided by the law governing Internet content.

Furthermore, the KCSC, he said, is highly transparent in its decision making.

“The review process is available on our homepage, and members of the public can sit in on our deliberations except in cases of defamation,” Han said.

But critics such as Oh Byoungil, a staff coordinator at Jinbonet, a left-leaning organization for Internet freedom, question the need for a body that has been “misused by the powerful to suppress criticism,” including negative postings about former Seoul Mayor Oh Se-hoon and other pro-government figures.

Rather, the Jinbonet coordinator believes that the Internet community should be allowed to regulate itself.

“I don’t think we need an administrative body to regulate the internet. Are there any other countries in which the administrative body can regulate the internet? Self-regulation by the Internet community or ISP can be one solution to regulate the content harmful to minors. If the content is illegal, it can be regulated by the court. However, the KCSC has regulated even content which is not illegal, and it’s not a competent body to decide illegality of the content,” he said.

The removal and blocking of content is not the only threat to Internet freedom, say activists. The real-name system, which forces online users to supply their name and Resident Registration Number when posting on websites with more than 100,000 daily visitors, has been controversial since its introduction in 2007. The rule came in for renewed criticism last year after the personal details of 35 million Cyworld users were stolen by hackers last July. In December, the KCC announced it would phase out the system by 2014.

Critics also complain of political bias when it comes to what is restricted and why.

“It is not just the KCSC, but all administrative entities are charged with the direct or indirect mandate of upholding the policy goals of the democratically elected head of the state,” said Park, who is also a lawyer.

“However, such a mandate, if applied to the free speech area, is deemed unconstitutional. Korea relies heavily upon administrative bodies whose role has been challenged as politically and culturally biased. Administrative bodies should stay out of areas concerning freedom of speech.”

Han rejects any suggestion that the KCSC is open to political bias or manipulation.

“(The law) states that the commission should not be influenced by outside interference or special favors. By following this law we are following our political neutrality.”

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[The Korea Herald] Is Korea doing enough for N.K. refugees in China?

By John Power

China’s forced repatriation of North Korean defectors in the country may have exploded onto the national and international agenda in recent weeks, but the issue is far from new.

While reaching an exact figure is impossible, the Chinese authorities have sent countless North Koreans back to their homeland to face imprisonment, torture or even execution over the last two decades.

According a recent testimony to the U.S. Congress by the chair of the Washington-based Committee for Human Rights in North Korea, the number comes to the tens of thousands.

Until recently, Seoul’s response had been one of “silent diplomacy,” declining to publicly admonish or raise the issue with Beijing. That has changed alongside mounting public protest and disillusionment here with China’s stance. The government this month sent a high-level Foreign Ministry official to China to discuss the issue and publicly petitioned the EU, U.S. and U.N. for support.

Protesters denounce China’s repatriation of North Korean refugees at a rally in Jongno, Seoul. (Yonhap News)

“…(We) delivered our concern over the possibility for them to be repatriated to their own country (to the Chinese foreign ministry). We also are bringing this matter to those international organizations like the U.N. human rights committee and expressed already our position through those keynote speeches of our high-rank officers of our ministry,” an official at the North East Asia division of the Ministry of Foreign Affairs recently told Voice on condition of anonymity.

China, however, has been unmoved, and continues to regard the refugees in its territory as economic migrants.

On March 9, just two days after another official in the Foreign Ministry was quoted in The Korea Herald saying China seemed “very uncomfortable” about the issue being internationalized, it was reported that China had forcibly repatriated 31 refugees.

The Foreign Ministry official Voice spoke with stressed that Seoul regrettably had very little leverage over Beijing on the issue.

“It is very limited because mainly the North Korean defectors problem in Chinese territory is solely the Chinese government’s matter so we cannot intervene as we want,” he said.

But he denies that the ministry has long been negligent in tackling the problem, pointing out that it had brought numerous defectors to the South with Chinese cooperation until relatively recently.

“Our position is that during the last 10 or 15 years we got substantial results during our so-called silent diplomacy and until 2009 or 2010 we still got some cooperation from the Chinese side to solve this problem. Not that eagerly, but they passively cooperated with us. Partly it depended on detailed cases, but mainly the international situation, especially our bilateral cooperation was better than now. But now I think the evaluation of their own policy toward North Korea and toward us has changed in China, that’s why, especially after the Beijing Olympics … I think they changed their position.”

The official wouldn’t be drawn on why ties had deteriorated, but said there were numerous explanations from commentators and academics available in the public realm. Among those proffered are China’s ambivalent reaction to the North’s sinking of the Cheonan and shelling of Yeongpyeongdo in 2010 and illegal Chinese fishing in Korean waters.

He added that the ministry had yet to receive any signs of change from China.

“Up to now, sadly, we don’t have any hopeful sign from the Chinese side yet, and I think it will take some more time.”

Professor Lee Jung-hoon, director of the Institute of Modern Korean Studies at Yonsei University, accepts that Seoul has little leverage on China. But, he says, nor has the government or political establishment acted with sufficient urgency.

“Because we have so many investments in China and … our trade relations with China are larger than our trade with the U.S. and Japan combined … and the fact that of course China seems to have some leverage in dealing with North Korea, all adds to our government and politicians being extremely ginger so as not to ‘provoke’ China,” Lee said.

“That shouldn’t in any way be skirted just because we are afraid that it might have a negative implication for our trade relations, economic or other political relations with China. That is extremely cowardly and China should not play that card either.”

He highlights the failure of the National Assembly to ratify the North Korea Human Rights Act as one egregious example of inaction.

“They’ve been stalling the passage of the North Korean human rights law which of course the U.S. and Japan has passed but we haven’t because the opposition Democratic (Democratic United Party) has been opposed to it. It’s very cowardly of the opposition not to raise human rights issues in the North and this is linked to the North Korean defector issue … We heard recently from Kim Jong-un about how to handle the defectors. He’s telling the soldiers to shoot them on sight. We know, China knows, exactly what happens to these people and (we) still lack the courage and moral conscience and a sense of responsibility.”

A Christian activist who helps North Korean refugees escape China to asylum says that his experience of government action has been disheartening. He points to an incident in 2009 where, he says, the South Korean embassy in Hanoi, Vietnam, refused asylum to a number of North Korean refugees. Other reports in publications such as the LA Times have repeated similar claims.

“In general, for the last decade and a half it would seem that, in my opinion, the South Korean government has not had a very robust policy toward protecting the refugees,” said the activist, who spoke on condition on anonymity.

“Usually it has been NGOs that have highlighted the issue and if a specific incident would come up in an embassy or consulate in China or some other country then, dragging its feet, the South Korean government would come to the table. I think it is doing better in this situation. But it seems to me that more or less the administration is following public opinion rather than really leading the way.”

He added that it is a “dirty little secret” that, even in liberal democracies, trade trumps human rights issues.

“The idea that there is really nothing South Korea can do is wrong. Seoul can simply say, ‘We understand your position, from now there is a 3 percent excise tax on every Chinese good that comes in here.’ That’s the point where a country truly declares this is important to us.”

Lee Tai-hwan, a senior research fellow at Seoul-based foreign policy and defense think tank The Sejong Institute, sees such a move as “unrealistic,” arguing that tax policy and the North Korean refugees are separate issues. And while he acknowledges that the government has had no option but to push harder on the issue recently due to growing public discontent, he says behind-the-scenes diplomacy is just as vital as more public campaigning.

“In terms of negotiation, they need to be a bit more flexible for effectiveness. Without effectiveness, many defectors will be repatriated to North Korea. To have a desirable result, I think, while the government could resort to the international organizations on the one hand, on the other hand they need to very skillfully negotiate with China … One track is the very principled track, another is the quiet diplomacy track.”

[The Korea Herald] Is North Korea closer to denuclearization?

On February 29, 2012, North Korea cut a deal with the United States for food aid in exchange for a halt to uranium enrichment. Despite hopeful speculation from some North Korea watchers that the country could be moving away from the pursuit of nuclear weapons, the agreement would ultimately be scrapped just six weeks later when the regime attempted a satellite launch widely seen as a covert missile test. — John.

By John Power

The start of the month saw a headline-making development in the decades-long effort to get North Korea to drop its nuclear weapons program. In exchange for 240,000 tons of U.S. food aid, North Korea agreed it would suspend nuclear tests, long-range missile launches and uranium enrichment at its Yongbyon facility, and allow the return of the International Atomic Energy Agency inspectors.

The response to the deal from many here and in the U.S. was favorable but tinged with caution ― unsurprising, considering the history of false dawns for North Korean denuclearization. U.S. Secretary of State Hilary Clinton summed up the mood with her opinion that the deal was only “a modest first step in the right direction.”

Among the many unconvinced of the North’s sincerity is professor Kim Yong-soon of Yonsei University’s Institute of East & West Studies.

“The move by the North Koreans to accept the latest deal seems to be for two reasons: one is to buy time for the completion of their regime transfer, and two is for economic reasons,” Kim told The Korea Herald.

“Of course these two reasons are intertwined in that only some sort of economic stability will ensure a smooth transfer of power as well as its completion. Only time will tell, but as of now, there seem to be no indications as to suggest that this deal is any different (from previous promises to halt its nuclear activities).”

This combination of two satellite images provided by DigitalGlobe shows on the left, construction at the nuclear complex in Yongbyon, North Korea, Sept. 20, 2011; and on the right, the Yongbyon complex on Feb. 3, 2012. The Feb. 3 image of the complex at Yongbyon was taken nearly a month before North Korea agreed to a freeze of major nuclear activities in return for U.S. food aid. Senior analyst Paul Brannan at the private Institute of Science and International Security said on March 6, 2012, a turbine building at the reactor that was still under construction in the Sept. 20 image now appears to be externally complete. (AP-Yonhap News)

Song Dae-sung, president of Sejong Institute, a Seoul-based think tank, is blunter in his assessment of the regime’s intentions.

“North Korea’s latest concessions are not sincere. There is no chance that the North Koreans would ever surrender their nuclear development program… In the short run, they hope to win some aid from Washington in exchange for symbolic concessions and demonstrated willingness to negotiate the eventual denuclearization ― this willingness is fake, but it will help for a while,” he said.

Song says that this latest commitment to a moratorium while, in the North’s words, “productive dialogues continue” allows North Korea to have it both ways.

“In the long run, they hope to make a deal about arms restriction, as opposed to disarmament. In other words, they are willing to freeze their nuclear program, if they are paid a hefty fee, and explicitly or implicitly allowed to keep some stockpiles of plutonium and/or nuclear devices. Thus, they will kill two birds with one stone: They will reap the benefits of being a recipient of large aid while they will remain secure from the threat of a foreign invasion or foreign support of a local insurgency.”

The hope remains for policymakers that the North’s concessions could be the stepping stone to the eventual resumption of the six-party talks, which the North walked out of in 2009, shortly followed by its second nuclear weapons test.

Accordingly, Stephan Haggard, director of the Korea-Pacific Program at University of California and visiting fellow at Peterson Institute of International Economics, is more optimistic about the implementation of the latest deal.

“The deal is significant in two ways. Not only does it provide a path back toward the six-party talks; it also suggests that the new leadership is capable of taking fairly bold decisions. They have been trying to come back to the talks, but the U.S. has demanded some prior actions or ‘pre-steps’ before resuming the Six Party Talks. I would be surprised if they took this step and immediately reneged on it,” he said.

While an enormous challenge, Haggard doesn’t see it as inconceivable that the regime could be induced to give up its nuclear weapons entirely.

“The negotiations will not be easy, and the U.S. and ROK will need to address North Korean security concerns and probably provide some economic inducements as well, including some discussion of light water reactors,” said Haggard.

But nuclear armament has proven to be a powerful bargaining chip for the North, one which it is not likely to give up lightly. Last year’s demise of Libyan strongman Moammar Gadhafi, after his compliance with U.S. and U.K. demands to end his nuclear weapons program, must surely give the North Korean leadership pause for thought.

“There are two very compelling reasons why North Korean decision makers need nuclear weapons: First they do not want to be slaughtered with their families; second, they want to be able to squeeze aid from the outside world,” said Song, adding that dialogue could never lead to the North’s disarmament.

But, if not complete disarmament, there is threat minimization.

“While I remain doubtful that North Korea is ever likely to negotiate away its nuclear program in its entirety, there is something to be said for limiting or constraining North Korean nuclear capabilities,” said Marcus Noland, a senior fellow at the PIIE and co-author with Haggard of a number of books on North Korea. “The recent deal does precisely that, limiting nuclear activities at Yongbyon, and could act as a springboard to negotiations that could result in broader denuclearization measures.”

While Noland is reluctant to attribute the concessions to an unprecedented willingness on behalf of the new North Korean leadership to denuclearize, he nevertheless believes they represent a significant breakthrough.

“What I think that we can say is that the deal means that someone or some group in Pyongyang is capable of making decisions; and that the first decision they made had a conciliatory, and with respect to the volume of food aid, an even concessionary, cast. This development is good news, especially if the alternative would have been hunkering down and doing another nuclear test later this spring.”

Kim believes that in the short term there is little Seoul can do to get the North to disarm, but that long-term strategies should combine accommodation and a tough posture. While the carrot and stick must go hand-in-hand, he says, Seoul and the international community have tended to rely too much or one or the other.

“In the long term, the South has to work to alter the rigid threat perception that North Korea has ― that is seeing the South and its alliance with the U.S. as a real and immediate threat to its survival. Again, this is made more difficult given that the North regime has been using this perceived outside threat to justify its rigid rule over its populace.”

[The Korea Herald] Is Korea soft on white collar crime?

By John Power

It is a common public perception: Korea is soft on white-collar crime, particularly when it involves high-level politicians, government officials or chaebol.

Speaking at the breach of trust case against Hanwha Group chairman Kim Seung-youn, an unnamed prosecutor implored the nation’s justice establishment to take a greater stand against corporate crime.

“If we continue to fail to punish (tycoons) for one reason or another, our society has no future,” the prosecutor said at the hearing at the start of February, demanding a nine-year prison term and 150 billion won ($134 million) in fines for Kim.

The recent history of criminal sanctions against chaebol heads could be said to lend credence to this view. A recent analysis by chaebol.com noted that not one of the seven heads among the top 10 chaebol sentenced to prison since 1990 has served jail time.

The business leaders, from Samsung Group, Hyundai Group, Doosan Group, Hanwa Group, SK Group and Hanjin Group, collectively received 22 years and six months in prison for crimes ranging from tax evasion to embezzlement. All, however, were given suspended sentences initially, later followed by a presidential pardon.

“I don’t know any other major country ― South Korea is an OECD member, a G20 member, the world’s seventh-largest exporter, you know, a big economy now ― where it is now routine for people, not just any old businessman, but the top people … (to) get convicted of stuff, (then) they hardly serve any time and the very next thing they are pardoned because they are so important to the economy,” said Aidan Foster-Carter, a long-time Korea observer based in the U.K.

Foster-Carter recently lashed the country’s attitude toward white collar crime in an Asia Times Online article entitled “The sleaze that shames Seoul.” In it, he took aim at an environment he saw as allowing big business act with impunity.

Among the examples listed were President Lee Myung-bak’s pardoning of Samsung Group chairman Lee Kun-hee, twice convicted of financial crimes, and the appointment of Hanwha chairman Kim, who had previous convictions for currency smuggling and assault before his current charges for embezzlement, to represent PyeongChang’s bid for the 2018 Winter Olympics.

“(It’s) the sort of sense that because they are so important they can do what they damn well please. Which again, I don’t think that is good for any country, is it, for anyone to have that sense they are above the law?” Foster-Carter said.

A sense that the powerful can escape justice is not just confined to the business world. The return of the superintendent of the Seoul Metropolitan Office of Education, Kwak No-hyun, to his post in January despite a conviction for bribing an electoral rival out of the race for the post prompted widespread criticism.

The use of the presidential pardon, too, has often been contentious, with critics charging that it is inevitably used for political purposes. Those in the political world to have benefitted from President Lee’s clemency have included the elder brother of former President Roh Moo-hyun, Roh Geon-pyeong, former Democratic Party National Assembly speaker Kim Won-ki and Suh Chung-won, a former lawmaker and close aide to Park Geun-hye.

Kim Woochan at the Korea Development Institute School of Public Policy and Management believes the current situation is untenable. When it comes to the courts, he says a major problem is judges’ tendency to consider the impact on the national economy in their sentencing, as in the cases of Samsung chairman Lee and Hyundai Group chairman Chung Mong-koo.

“They tend to mix what is legally right and wrong with how much a businessman is contributing to the Korea economy. They keep on considering the second factor and diluting their verdict. I also agree that there are some powerful people trying to get favors. They have influence so they somehow influence not only the judge’s verdict and the presidential pardon, but also even when making the laws they try to influence how the laws are made in their favor,” he said.

Aside from the ethical implications, arguments about how vital chaebol leaders are to the economy are outdated, according to Kim.

“In the old days, especially the founders of the chaebol, they were essential. We wouldn’t have those large corporations without those founders like Lee Byung-chull (the founder of Samsung) and Chung Ju-yung (the founder of Hyundai) and so on. But now we have second generation and third generation and compared to their fathers they are not really essential. I think Korean corporations can survive and even prosper without them,” he said.

Another part of the problem, as Kim sees it, is the cozy relationship between the legal system and business interests.

“Many of those judges and prosecutors, once they retire they become outside directors of Korean major corporations. Especially, because these are lawyers, they would become involved in the cases as … the lawyers for the defendant when they retire and they get heavy legal fees. Those are the practices that, I agree, it might give them incentives to be more lenient.”

But not everyone agrees that the legal system is lacking. Korea University law professor Kim Il-su says that Korean law is actually noticeably strict compared to other jurisdictions.

“I think the law system against white collar crime is sufficient to control such crimes. The sanctions against economic crimes in the special law seem to be a little bit punitive compared to the international standard,” Kim said.

This is a view supported by Yonsei law professor and “Corporate Compliance” author Jeong Young-cheol, who believes enforcement, rather than the laws on the books, is a matter of concern.

“If you look at the special laws on crime of breach of fiduciary duty/misappropriation of corporate funds, the maximum punishment is way too high,” said Jeong. “The amount of fines is also extreme. Again, sufficiently strong. The effectiveness is not always on the same level.”

Overall, Jeong says Korea has a decent record on tacking white-collar crime, one much improved upon from the past. In particular, he points to a soon-to-be-introduced compliance guardian system which will mandate compliance officers at large public companies to ensure adherence to the law.

“The legal and regulatory framework has done a fair job of cleaning up the business world and protecting the public. The number of insider trading criminal cases is similar to that in the United States. Although the Korean business is known to be corrupt, it is being improved. Compared to the past, the situation seems much better.”

Korea University’s Kim also argues that extenuating circumstances, including economic considerations, as in the examples of Samsung and Hyundai, are in fact relevant when it comes to sentencing.

“Those aforementioned cases were already cleared two years ago. When the cases were pending in the Court, the expected roles of CEOs from Samsung and Hyundai in supporting the organizing of the Winter Olympics in PyeongChang were necessary. Therefore, the Korean Court took the unusual circumstance into consideration.”

Recent examples show a tough approach to white-collar crime, Kim says, pointing to last month’s sentencing of former Taekwang Group chairman Lee Ho-jin to four-and-a-half years in prison for embezzlement and breach of trust.

While Yonsei University’s Jeong also points to an ever more rigorous legal environment, he accepts there remains room for improvement.

“We can do better. How? Try to prevent the crimes, try to make people believe norms are to be observed, try to make rules fair as everyone is ruled by the same law. We should be more focused on the preventive side of crimes than punishment side.”

Others, such as the KDI’s Kim, remain pessimistic about the likelihood of change.

“We thought that it was getting better but it doesn’t look that way anymore especially with Lee Kun-hee’s presidential pardon,” Kim said. “And corporate scandals involving family members do not seem to be ending.”