Washington University Global Studies Law Review Volume 2 Issue 2 January 2003 Obscenity Laws in a Paternalistic Country: The Korean Experience Jaewan Moon Dankook University Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Comparative and Foreign Law Commons, and the Internet Law Commons Recommended Citation Jaewan Moon, Obscenity Laws in a Paternalistic Country: The Korean Experience, 2 WASH. U. GLOBAL STUD. L. REV. 353 (2003), https://openscholarship.wustl.edu/law_globalstudies/vol2/iss2/3 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. OBSCENITY LAWS IN A PATERNALISTIC COUNTRY: THE KOREAN EXPERIENCE JAEWAN MOON* Table of Contents I. INTRODUCTION..........................................................................................354 A. Legal Framework Regarding Sexual Expression........................355 B. The Constitution and Freedom of Speech....................................357 C. Criminal Punishment ...................................................................358 D. Administrative Regulations..........................................................359 E. Special Legislation for Minors.....................................................360 II. THE DEVELOPMENT OF CASE LAW .........................................................362 A. Korean Supreme Court Cases .....................................................362 1. The Nude Maja Case ...........................................................363 2. The Revolting Slaves Case ..................................................364 3. The Married Life Case.........................................................364 4. The Happy Sara Case...........................................................365 5. The Santa Fe Case................................................................367 6. The Lie to Me Case..............................................................368 7. Conclusion ...........................................................................369 B. Comparison of Case Law in Korea and the United States..........369 1. Defining Obscenity ..............................................................369 2. Who Decides? ......................................................................373 3. Protecting Minors................................................................374 III. RATIONALES FOR SUPPRESSING SEXUALLY EXPLICIT EXPRESSION.....376 A. Public Morality and Freedom of Expression ..............................376 B. The Battle over Freedom of Speech.............................................378 C. Paternalism in Korea and the United States ...............................380 IV. REGULATION OF SEXUAL EXPRESSION IN THE INTERNET AGE ............383 A. Regulating Online Pornography..................................................383 1. Censorship by Committee....................................................384 2. ISP Self-Regulation..............................................................385 3. Prosecution ..........................................................................386 4. The Government’s Internet Content Rating System ............387 V. CONCLUSION ...........................................................................................389 * Professor of Law, Dankook University in Seoul, Korea; LL.B., Seoul National University College of Law (1985); S.J.D., LL.M., Indiana University School of Law (Bloomington) (2002). I would like to thank Professor Fred H. Cate, Daniel O. Conkle, and Joseph L. Hoffmann for their encouragement and enlightening comments during my study at Indiana University. 353 Washington University Open Scholarship P351 Moon book pages.doc 10/28/03 11:49 AM 354 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 2:353 I. INTRODUCTION Obscenity laws in Korea are coming under increased scrutiny as the Korean people develop inconsistent attitudes towards sexual expression in the age of the Internet. Even mild sexual expression is not officially accepted. Ostensibly, Korea is a traditional society heavily influenced by Confucianism. Sex is a private matter, only marital sex is permitted, and even benign forms of sexual expression are not officially accepted. Korea is one of the few Asian countries that has criminalized adultery.1 Korean courts contribute significantly to the preservation of conservative norms. Based on its obscenity laws, Koreans are living in a society comparable to that of the United States fifty years ago. The Hicklin test,2 which defines obscenity as the tendency to deprave and corrupt susceptible persons, remains a part of obscenity jurisprudence in Korea. In cyberspace, sexually explicit materials are easily accessible. For example, in February 1999, Hyun Kyung Oh, Miss Korea 1988 and a famous actress, sought shelter in the United States after a private videotape of Ms. Oh and her boyfriend appeared on the Internet. Ms. Oh claimed that they recorded the videotape as an expression of their love. The public reaction to the videotape and its dissemination on the Internet was so severe that she could not stay in Korea. Most Koreans, especially the older generation, were shocked that Ms. Oh would voluntarily make a videotape and condemned her boldness. Ms. Oh had no choice but to apologize,3 and end her career as an actress. Ironically, after the private videotape circulated on the Internet, many of Koreans, including older males who lacked computer skills, rushed on to the Internet and downloaded the Ms. Oh’s video clips. Koreans joked at the time that Ms. Oh, not the CEO of Samsung or the Korean Minister of Information and Communication, contributed to the rapid growth of Internet Korea.4 Two years later, another private videotape of a pop singer Ji Young Baek, 1. Under Article 241 of the Korean Criminal Code, a married person guilty of adultery is subject to imprisonment for up to two years. The Constitutional Court of Korea upheld the constitutionality of this provision. Dissenting justices argued that other countries had already repealed such statutes. See Constitutional Court Judgment of Sept. 10, 1990, 89 HunMa 82, 2 KCCR 306 (S. Korea). 2. See infra text and accompanying notes 88-90. 3. Myung Keon Lee, Talent Ohyunkyung, “Oyang Video Mulee Ileekyu Zoisong” [Miss Oh Said “Sorry for the Disturbance”], DONGA ILBO, May 8, 1999, at 26. 4. Sang Yeon Kim, Oyangeun Internetee Choidae Pihaeja [Miss Oh, the Victim of the Internet], SEOUL KYUNGGE, Dec. 3, 1999, at 1. Even people unfamiliar with computers quickly learned how to access the Internet and view Ms. Oh’s videotape. Id. https://openscholarship.wustl.edu/law_globalstudies/vol2/iss2/3 P351 Moon book pages.doc 10/28/03 11:49 AM 2003] OBSCENITY LAWS IN A PATERNALISTIC COUNTRY 355 appeared on the Internet.5 It was reportedly downloaded at a rate of 200,000 copies a day.6 A recent survey of sexual attitudes shows that Korea is not as conservative as it appears. Time magazine reported that Koreans are more likely to enjoy pornography than Asians who live in Hong Kong, Korea, Thailand, Philippines, or Singapore.7 Moreover, one of every two Korean men interviewed admitted to having watched pornography in the past three months, while approximately one of every three Korean women watched pornography over the same period.8 This Article examines the development of obscenity laws, the rationale behind governmental regulation of sexual expression in the light of freedom of speech, and the cultural context for these regulations in Korea compared to those of the United States. Finally, this Article addresses the impact that the Internet will have on sexual expression. The Internet has exposed the internal conflict Koreans have regarding pornography. The fact that Koreans are among the heaviest users of Internet9 could circumstantially be connected to the results of the Time survey. A. Legal Framework Regarding Sexual Expression Because Korea is a civil law country, statutes prevail over other normative sources. Statutory provisions regarding sexual expression must be examined before judicial decisions.10 The outstanding characteristics shown in Korean statutes with regard to sexual expression can be summarized as follows. Preservation of public morality or social order is a common justification for regulations on sexual expression in Korea. Such rationales are based on 5. Doug Struck, S. Koreans Clash on Internet Sex Video, WASH. POST, Dec. 25, 2000, at A35. 6. Id. 7. Stephen Short, Sex in Asia: Dirty Movies, TIME (ASIA ED.), Mar. 19, 2001, available at http://cgi.pathfinder.com/cgi-bin/time/asia/gdml3/osform/generic. 8. Fifty-one percent of Korean males admitted to viewing pornography within a three month period in 2001, compared to 48% of Philipino men, 40% of Thai men, 31% of Hong Kong men, and 20% of men in Singapore. Id. Thirty percent of Korean women admitted viewing pornography in the same period, compared to 24% of Philipino women, 20% of Thai women, 11% of Singapore women, and 10% of women in Hong Kong. Id. 9. According to Neilson/Netratings, in January 2001, Koreans spent an average of sixteen hours and seventeen minutes, the most in the world. See Hyung Jin Kim, Koreans Become World’s Heaviest Users of Internet Sites, KOREA HERALD, Mar. 12, 2001, available at 2001 WL 8116599. Canadians