On December 30, 2013, the Korea Communications Commission (KCC) published a report that named about 70 broadcast news programs as ‘news look-alikes’. Such term refers to the programs aired by program providers that are not authorized to produce broadcast journalism. KCC later announced that it will impose restriction on those program providers, based on Article 50 of the Enforcement Decree of the Broadcasting Act which only allows news reporting to stations with license for ‘general programming channels’ and ‘specialized programming of news reports channel’.
But the license system for broadcast journalism conflicts with Article 21.2 of the South Korean Constitution as it prohibits licensing and censorship on press. Since there is a possibility that the government organization could license only those who favor the government, the current system could turn into a practical censorship.
This study focuses on such danger involved in the license system and seeks for alternative legislations in Korean law. The study also looks into the United States’ law on same subject for comparison as the country has a long history of social conflicts and court rulings related to freedom of speech.
On December 30, 2013, the Korea Communications Commission (KCC) published a report that named about 70 broadcast news programs as “news look-alikes”. Such term refers to programs aired by program providers that are not authorized to provide broadcast journalism. KCC said that these “news look-alikes” have been reporting and making comments on conflicts in economic, politic and social fields, which could affect public opinion or even the elections.
The initial report did not mention any plan to limit or punish these programs, but the following media interviews with the commission’s decision makers showed differently. Lee Kyung-jae, former chairman of KCC who was then in office, explained the commission’s plan on “clear restriction” since “if those program providers who originally registered as entertainment·stock·traffic channels start reporting the political and social conflicts, they could distort the public opinion.”
The legal basis of KCC’s decision is found in Article 50 of the Enforcement Decree of the Broadcasting Act. Under this article, only the program providers who have obtained license for general programming channel or specialized programming of news reports channel can report news. In other words, it is up to the KCC, a government organization, to decide who gets to participate in journalism.
But this brings up a problem as it conflicts with Article 21.2 of the Korean Constitution which prohibits any licensing or censorship of speech and the press. After all, there is a possibility that the government might stifle voices of opposition by not giving a license. This study focuses on such danger of the current system and sees if there are any alternatives in the Korean legal system. The study will also look into the United States law on the same subject as the country has a long history of social conflicts and court rulings related to freedom of speech.
Ⅱ. Korean Law on Broadcast Journalism
1. Current Law
(1) Constitution Article 21.2 and Article 37.2
As mentioned earlier, Article 21.2 states that “licensing or censorship of speech and the press and licensing of assembly and association shall not be recognized.” Based on this article, any legislation trying to license or censor speech shall lack constitutional legitimacy. However, this does not mean that freedom of speech is an absolute right. According to Article 37.2 of the Constitution, the freedoms and rights of citizens may be restricted by legislation when it is necessary for national security, maintenance of law and order, or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated. So freedom of speech may also be restricted under such circumstances as long as the crucial part of the right stays protected.
(2) Broadcasting Act Article 9.5 and Enforcement Decree of the Broadcasting Act Article 50
Article 9.5 of the Broadcasting Act states that “a person who intends to operate a program providing business engaged in general programming or specialized programming from news reports or commodity presentation and sales shall obtain approval from the Korea Communications Commission” while those seeking to operate other types of programs shall just “register.”
Article 50.1 of the Enforcement Decree of the Broadcasting Act then states that general programming channels should “ensure that the broadcast programs related to news reports, culture, and entertainment are coordinated under the former part of Article 69.3 of the Act,” allowing them to report news. Meanwhile, Article 50.5 limits the options for other program providers as it only allows them to air either the major field by which they obtained license or “those related to culture or entertainment.” In explaining “news report broadcasts”, Article 50.2 defines them as “the broadcasts related to coverage and report, reviews, commentaries, etc. for current events with respect to overall domestic and foreign politics, economy, society, culture, etc.”
To sum up these articles, any broadcast station who wishes to operate general programming channel or specialized programming of news reports channel should obtain a license from KCC and the station can report news only after doing so. Those who wish to operate other types of channels can simply register with KCC but they are not allowed to report, review or comment on current events in politics, economy, society, culture, and etc.
(1) License System Infringing Freedom of Speech
The licensing system for broadcast journalism has a high possibility of harming freedom of speech, especially that of the opponents of the current government. Under such system, there is no legal measure to stop KCC from choosing only the operators who favor the government as the general programming channel or specialized programming of news reports channel. If abused, the system could easily turn out to be a practical censorship of the press, which is strictly prohibited by the Constitution’s Article 21.2.
KCC also seems to acknowledge such danger as its internal study mentions “such a strict entry restriction could let the government body to make an arbitrary choice of broadcast operators” and that “there have been arguments about terminating the license system and leaving the decision of whether or not to enter the market solely on the participating companies.”
Even if KCC somehow comes up with a way to guarantee its objectivity and fairness in giving out licenses, it is almost impossible to stop the other channels from reporting news. Since Article 50.2 of the Enforcement Decree of the Broadcasting Act vaguely defines ‘news’ as ‘a review or comment on current events,’ even a celebrity guest on an entertainment channel’s talk show would be reporting news if he or she started to complain about bad economy.
Former KCC chairman Lee also mentioned the difficulty of drawing the line between news and “news look-alikes”. “For example, a program provider with the license for a stock specializing channel would want to talk about economic and political situations as they will affect stock prices. In these cases, whether or not to view this as a ‘news look-alike’ is a difficult question,” Lee said.
Following such broad definition and regulation might again harm freedom of speech as it brings a ‘chilling effect’ among program providers. Since the law cannot show a concrete guideline of what or what not to do, channels will fear possible punishment and start making safe choices. This means a lot of them would stop talking and the diversity of topics and materials in broadcast media would disappear.
(2) Violation of the Principle of Proportion
As mentioned earlier, Article 37.2 of the Korean Constitution states that the freedoms and rights of citizens including freedom of speech may be restricted by law if it is necessary for public interest. But even then, the restricting law cannot go against essential aspects of the rights and freedoms protected by the Constitution. In deciding whether the law violated the essential aspects of constitutional rights, the Constitutional Court of Korea applies a standard called “Principle of Proportion”. The principle requires the law restricting citizens’ rights to contain 1) justice of legislative purpose, 2) appropriate measure, 3) minimal violation of citizens’ rights, and 4) balance between violated rights and public interest the law tries to achieve. If the law restricting constitutional rights violates any one of these, the court shall rule it as unconstitutional.
The license system for Korean broadcast journalism seems to dissatisfy 3) minimal violation of citizens’ rights from the Principle of Proportion, as there are other ways to achieve the goal. According to the KCC study, the current license system exists to make sure that “only an operator who has enough budget and professional human resource to provide objective and fair news programs will be allowed to report news, because news reporting has a wide range of social and cultural effects on public opinion.”
But if fairness and objectiveness of press is the source of worry, South Korea already has Korea Communications Standards Commission (KCSC) reviewing news reports from media on those matters. Article 32 of the Broadcasting Act authorizes KCSC to deliberate on information from broadcasts after they broadcasted it, to see if they “maintain their impartiality and public nature, and as to whether they observe the public responsibilities.” The following Article 33 lists the matters for deliberation which include “matters concerning the impartiality and public nature of news reports or commentaries.” If KCSC finds a broadcast operator to have violated the deliberation rules under art.33, the commission can fine the operator up to 50 million Korean won, or order disciplinary measures such as 1) correction, amendment or suspension of the relevant broadcast program 2) disciplinary action against the person in charge of broadcast programming or the person related to the relevant broadcast program and 3) caution or warning.
A broadcast station could also get charged or sued for defamation if its news report intentionally dishonors someone with false or unfair information. The Korean Constitution’s Article 21.4 guarantees such right as it states “should speech or the press violate the honor or rights of other persons, claims may be made for the damage resulting therefrom.” The Civil Code also states in Article 764 that “the court may, on the application of the injured party, order the person who has impaired another’s fame to take suitable measures to restore the injured party’s fame, either in lieu of, or together with damages.” Article 307 of the Criminal Code regulates both defamation with facts and false facts as the first paragraph states that “a person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won”, and the second provides that “a person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than five years, suspension of qualifications for not more than ten years, or a fine not exceeding ten million won.” This article makes it possible to punish broadcast operators for false, malicious news reports as well as severely unfair reports with unbalanced and partial facts.
Viewers too, can raise their voices if an existing broadcast operator loses balance in its news reporting or if an applicant to build a new station has a possibility of unfair news reporting. According to Article 10.1 of the Broadcasting Act, KCC must examine factors that are necessary for conducting broadcast business when an applicant seeks a license or registration for a new operation. One of the factors that an applicant should satisfy is “possibility of realizing public responsibility, impartiality and nature of public interest in broadcasting.” When KCC checks out this condition, Article 10.2 of the law requires the commission to hear the opinions of the viewers openly and make a public announcement on whether their opinions have been reflected. Article 17.4 of the law applies the exact same rule when existing broadcast operators seek for renewal of their license or registration.
Current laws regarding KCSC’s monitoring, viewers’ rights and defamation are enough to make broadcasters responsible for their news reports. They will lead the program providers to take extra caution on maintaining fairness and objectiveness in further reporting. These laws are also relatively more in harmony with freedom of speech compared to the license system, as they only regulate the news reports after they are published and aired. They do not stop the press before talking or censor their materials to decide whether or not they should be out. Maintaining the license system for broadcast journalism when safer ways to achieve the same goal exist invades citizens’ rights more than necessary, hence violating the Principle of Proportion.
Ⅲ. United States Law on Broadcast Journalism
1. Current Law- First Amendment and Telecommunications Act of 1996 SEC. 326.
The First Amendment to the United States’ Constitution prohibits congress from making any law abridging the freedom of speech or of the press. In line with the Constitution, Telecommunications Act of 1996 SEC. 326 also prohibits the Federal Communications Commission (FCC) from imposing censorship or any other regulation to interfere with the right of free speech.
A party wanting to operate a new broadcast station should first apply for the FCC construction permit. If the applicant successfully demonstrates that he or she is qualified to construct and operate the station, usually in terms of technical qualification, the FCC grants a construction permit. After constructing the station, the applicant should then apply for a license to operate. FCC will review the application and later license the station as either commercial or noncommercial educational. The difference between the two comes from how they obtain the money for operation, not from the type of content they air. Commercial stations support themselves through sale or advertising while noncommercial educational stations will get contributions from viewers or government funding. The operation license from the FCC expires after a certain period and the station will have to apply for renewal.
Once a station receives a permit to broadcast, the FCC stays out of its way and the station enjoys discretion to select what and what not to broadcast. The FCC’s guide book writes that the commission has observed that “the public interest is best served by permitting free expression of views” and that it does “not substitute our judgment for that of the licensee, nor do we advise stations on artistic standards, format, grammar, or the quality of their programming.” When it comes to broadcast journalism, the FCC remains the same as it writes “we also do not review anyone’s qualifications to gather, edit, announce, or comment on the news; these decisions are the station licensee’s responsibility.”
There are few exceptions where the FCC would intervene: the cases of hoaxes and news distortion are such instances. But even in these cases the standards are very detailed and strict so the FCC cannot easily get involved. For example, if the FCC is to regulate a station on false information; the information should concern a crime or catastrophe, the station licensee must have known that the information is false, the broadcasted false information should directly cause substantial harm on property or to the health or safety of the general public, and such harm should be foreseeable. In case of news distortion, unless the commission receives a compelling display of the allegation like documented evidence or testimony of distortion from people with direct knowledge, it will not intervene.
When the operation license expires and the broadcast station applies for a renewal, citizens can file petitions to the FCC denying the station’s application if they believe the station has not been operating well. Petitions may also be filed when an operator seeks to build a new station or tries to sell an existing station.
2. Conflicts Surrounding the Fairness Doctrine
Before it was abolished by the FCC in 1987, the Fairness Doctrine was one of the main policies of the commission on broadcast journalism. The doctrine required “a cable television system operator engaging in origination cablecasting to give reasonable opportunity for the discussion of conflicting views on controversial issues of public importance.” The justification for applying the doctrine to only broadcasting was that “in contrast to the potentially infinite number of newspapers and magazines, there were a limited number of frequencies and channels and thus a limited number of broadcast outlets.”
The FCC abolished the doctrine by vote as the commission sought “to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country’s inception,” said the then chairman, Dennis R. Patrick. Every time when the new administration starts its term, controversy would arise about whether or not to bring the doctrine back. The U.S. Congress tried to revive the doctrine first in the Reagan administration, and later again in the George H. W. Bush administration, but failed both times as the presidents vetoed the idea. It is still a controversial issue within the United States society as supporters argue for better balance and diversity in broadcast media while opponents try to protect free speech. As the doctrine remains gone for now, the United States’ broadcast journalism is continuing to enjoy relatively wide press freedom.
The annual index showing freedom of media published by The Freedom of Press in 2014 shows that South Korea ranked 68th among 197 countries, right behind Chile, Namibia and Nauru- countries that have a much lower GDP than Korea. Among three categories of ‘free’, ‘partly free’, and ‘not free’, Korea was categorized for ‘partly free’ when its neighbor Japan was ‘free.’
The message that the Korean Constitution’s Article 21.2 sends out is clear and precise. The South Korean Constitution aims to protect freedom of speech just like the First Amendment to the United States’ Constitution does. This does not mean that freedom of speech is an absolute and unconditional right with utmost priority. But with other laws on KCSC deliberation, viewers’ right as watchdogs and defamation already prepared in the system to guard fairness and objection in broadcast media, there is not much reason to hold onto a license system which endangers press freedom with possible censorship.
Considering that the history of media and enlargement of the market is relatively a new subject in Korea compared to the United States, it could take some time and steps for the country to reform the current system. But eventually, the license system for broadcast journalism should be abandoned. Permits from KCC should only be given for constructing and operating a broadcast station, not on how to operate it and what subject to operate with. Whether or not to report news should be on the operator’s will to decide. After all, like the FCC wrote in its guide book, “the public interest is best served by permitting free expression of views.”