Seoul Bureau Chief Tatsuya Kato is being investigated for an article on the South Korean president, but will he actually be punished?

BARRED FROM LEAVING SOUTH Korea, Japan’s Sankei Shimbun Seoul bureau chief Tatsuya Kato was summoned twice in August by prosecutors as they investigated defamation charges rising from his controversial Sankei article that questioned President Park’s whereabouts during the April Sewol ferry tragedy.

The Supreme Prosecutor’s Office recently announced its plans to prosecute Kato for criminal defamation, but with the presidential office avoiding getting directly involved and foreign press slamming South Korea for violating the freedom of speech, it remains unclear how the legal proceedings will unfold going forward or to what extent they actually can.

Though a similar editorial in the local newspaper Chosun Ilbo which Kato cited as source material had already raised the same questions, his article raised noticeably greater furor in the Korean public. It was enough to prompt an angry conservative civilian group leader to submit a bill of indictment directly to the Seoul Prosecutor’s Office.

And because defamation law in Korea allows authorities to investigate a supposed offense even without the affected party’s involvement, President Park herself is conspicuously distanced from the case.

Somewhere along the way, it became a diplomatic issue as well, when Yun Byeong Se, South Korea’s foreign minister, unexpectedly pursued the issue with Japan’s Fumio Kishida at a recent ASEAN Regional Forum in Myanmar. The question on everyone’s minds, however, is: will criminal defamation charges against Kato actually hold up in court?

Those who say “no” roundly point to the fact that Kato’s article heavily borrows from the earlier Chosun Ilbo editorial. They ask, if the insinuations that landed Kato in hot water aren’t even really his, why is he alone being summoned for investigation? This is the grist of the Sankei’s defense, and though both Korean and foreign commentators have also raised this question, authorities are tight lipped on the subject.

The president’s chief secretary Kim Ki Chun’s evasive reply when asked about President Park’s absence “I don’t know about her exact whereabouts at the time” is credited by observers as the event that launched the situation into greater (and more scandalous) public scrutiny.

Kato’s primary source material, the July 18 Chosun Ilbo editorial titled “The rumors surrounding the president” by Choi Bo Sik, is the notable example. In analyzing Kim’s ambiguous response, Choi explained it as “an attempt to protect the President.” But from what?

Kim’s editorial hinted at an answer, stating, “There are rumors going around that the president was with a certain partner at an undisclosed location,” and later naming recently divorced Jeong Yoon Hwe as the “character in the rumors.” Though the rumors that fueled so much speculation remain unconfirmed, as far as Korean defamation law is concerned, their truthfulness may be beside the point. Experts on the sidelines agree that, considering the derivative nature of Kato’s article, the crux of the defamation case is intent rather than the truth about President Park’s whereabouts.

A 1998 Supreme Court decision reads, “Even when the alleged fact is not proved to be true, but the presenter believes that the alleged fact is true and has substantial reasons to believe so, the action shall be deemed to have no criminal or reckless intent.”

Neither article, however, claimed any of these rumors were true simply that they existed. The grist of Sankei’s own defense is that Kato merely paraphrased points already raised by the original Chosun Ilbo column, which itself refrained from making claims about the rumors’ truthfulness.

Although those who support prosecuting Kato insist that the intent behind reiterating these rumors was indeed malicious, some others counter that it’s an argument that’s difficult to prove with the available facts. “It’s plain to see that the [Sankei] article didn’t actually make the conclusion that President Park met this other man it merely raised the question,” says Yonsei University criminal law professor Park Sang Gi. “You could ask whether, if these allegations turned out to be false later on, Sankei could be held liable for failing to factually back up their report. But as the article itself shows, they simply reported secondhand that these rumors are circulating in Korea they didn’t fabricate facts out of malice.”

Like many others who don’t support prosecution, Park also says the media’s interest in these rumors is simply a matter of course. “Unless someone can prove the author’s libelous intent, it’s hard to call this a valid case of defamation,” he says. “Raising these types of questions is part of the press’s fundamental purpose and intrinsic function.”

And as critics of President Park’s seven hour absence have noted, there is a strong case for the legitimacy of airing out this particular rumor, since it concerns an incident that resulted in the death of nearly 300 students. The 1998 Supreme Court ruling also includes a provision protecting reports about public affairs, stating that, “the action has no illegality when the alleged fact is related to a public matter.” “The question of President Park’s whereabouts is an issue is of public significance. It’s not just a matter of the president’s privacy,” says Park.

And while the argument rages in the media, the presidential office appears to be shrewdly detaching itself from the case. Earlier this year, Cheongwadae (the presidential office) representative Yoon Doo Hyun had stated that the “Cheongwadae will fully follow through with all civil and criminal charges.” But more recent comments indicate a change of heart: “We are going to carefully observe the legal process initiated by a third party.”

As defamation laws in Korea stipulate that an offense will go unpunished only if the victim explicitly requests it, the presidential office’s comments can only be construed as an implicit go ahead.

However, with President Park’s mysterious absence still unexplained, the presidential office’s lukewarm stance, and mounting criticisms of the discriminatory investigation, even critics of Kato have suggested the possibility of a diplomatic solution.

Max Kim is a freelance journalist and cartoonist based in Seoul.