Fake comments by real soldiers: South Korean scandals through a digital rights lens

Political turmoil has swept South Korea in recent years. Former President Park Geun-hye was impeached and imprisoned last year. This year, her predecessor, Lee Myung Bak, was also sent to jail, with multiple charges filed against him. Although the current administration and the ruling party are relatively popular compared to these former presidents and their party, a set of scandals, including one involving a “power blogger,” or influencer, have created doubts about their honesty and legitimacy.

Digital rights lie at the heart of these two scandals, which involve abuse of the online comments sections of the country’s most popular news portal sites, such as Naver or Daum. The scandals unfortunately reveal that governments and irresponsible private actors can easily exploit online fora for their political interests, and that the legislative response can also swing too far in the direction of censoring and punishing users and platforms. As a result, South Korean politicians appear untrustworthy, yet the proposed laws to address the problem are unwieldy and unlikely to prevent further abuse. A better way forward is needed, one that protects at-risk users and their right to anonymity while encouraging robust democratic discourse in the country.

South Korea is one of the most wired countries in the world, with near-total mobile broadband coverage, super-fast internet speeds, and a world-class electronics manufacturing sector. The government’s technology policy impacts millions of people at home and the development of technologies that are used around the world. Below we examine the two scandals in question, with an analysis of South Korean law and digital rights, and offer possible solutions to prevent similar incidents in the future, without limiting people’s right to free expression.

While in each instance, the fairness of elections and democratic values have been undermined, they differ in a significant respect. Whereas the “NIS comments” scandal involved national government institutions’ alleged meddling with internal political affairs, the more recent “Druking” scandal involves accusations that private actors were using bots to flood comment sections to “rig” the 2017 Korean presidential election by swaying public opinion. In this latter scandal, an online influencer acted allegedly with politicians’ support.

The “NIS comments” scandal and the government’s troll armies

The National Intelligence Service (NIS) comments scandal erupted in 2012. South Korea’s National Intelligence Service was accused of mobilizing its cyberwarfare experts to influence the country’s 2012 presidential campaign. It turned out that the NIS was not the only agency that has attempted to manipulate public opinion; after Ms. Park became President, the Korean armed forces’ Defense Security Command ran an online opinion-rigging team, Sparta. Its key role was to leave online comments in favor of Ms. Park and her predecessor, Mr. Lee.

In response to the accusation, the director and NIS agents involved in the scandal argued that the comments were aimed at fighting North Korean cyber attacks. But the Supreme Court of South Korea, sitting en banc (with all judges presiding), held that the former director of NIS, Won Sei Hoon — who orchestrated the online campaigns against Ms. Park’s political rivals — exploited his power to conduct illegal electoral campaigns. This was found to contravene public officials’ duty to maintain political neutrality, in violation of the Constitution of South Korea. Free and fair elections, along with transparency and accountability in public administration, are not only protected under the Constitution, but are also essential for democracy under international law. The government agency abuse of internet fora to surreptitiously influence elections is not permissible in any society that respects democratic values.

Troll armies adversely impact free expression and democratic discourse. They interfere with the capacity to access information that can be especially critical for voters to make decisions in elections. Even when they are not aimed at swaying a particular election, trolls can spread disinformation — often through malicious hacking  — and promote hate speech online, which can sow division and splinter parties. The comments and postings written under the approval and supervision of NIS or Defense Security Command often contained messages that spread disinformation and incited hatred towards not only North Koreans but also South Koreans with certain political views. Government agencies that actively propagate these kinds of messages clearly violate Article 20 (2) of International Covenant on Civil and Political Rights (ICCPR), stipulating, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Despite the clear detrimental effect that troll armies have on our rights and democratic processes, multiple countries around the globe take advantage of them for both external and internal political purposes. Frequently, one government’s troll army serves as the pretext for a rival government creating its own army. The NIS of South Korea took advantage of the cyberattacks from North Korea to legitimize its troll armies. Therefore, one government’s activity bears the risk of further proliferation, with the people’s fundamental rights sacrificed in the process. In order to stop the ongoing use of government troll armies, states should work together, committing to international agreements not to deploy these armies, either domestically or abroad. It may be helpful for an independent organization to oversee governments’ activities to assess whether they are secretly exploiting troll armies, for either domestic or foreign political benefit, to give effect to such a pledge.

The “Druking” scandal: outsourcing the troll armies?

The “Druking” scandal is more complicated, since private actors do not have any duty to be politically neutral. The incident garnered attention due to the alleged involvement of Kim Kyung Soo, a former congressman of the ruling Democratic Party and now the governor of the Kyung Nam Province. Reportedly, Kim Kyung Soo collaborated with members of a group called the “Economic Coevolution Center,” including an influencer nicknamed “Druking” — a handle combining the words druid and king — in using bots to support Moon Jae In, then running as a candidate for president of South Korea (he won).

The risks to our democratic values and human rights increase when groups use bots to mislead people and influence public opinion in favor of politicians. Even when the groups or individuals act purely out of support for the politicians, not their own financial benefit, artificially ramped-up numbers of “supporters” — actually fake accounts or bots — give people false impressions about public opinion, and this impacts their access to information and right to free expression. However, there are no legal grounds for punishing those involved in this scandal. No legislation punishes the creation of fake accounts or use of bots to artificially flood comments. The “Druking” himself was arrested simply for interfering with the business of Naver. Even if the politician, Kim Kyung Soo, is involved, he would not be charged even under electoral laws, since the statute of limitations for Public Official Election Act of Korea (six months) has expired.

Bad legislation is no cure for the problem

In response to these scandals, lawmakers have proposed numerous sets of legislation that could punish the “Druking” and Mr. Kim, if he is found also accountable. Most, if not all, of the fixes proposed, however, are deeply problematic and would severely restrict freedom of expression online. Some proposals even attempt to remove anonymity online altogether, threatening the Korean people’s rights broadly. Online anonymity helps makes the internet a forum for free expression, ensuring that people are able to exchange ideas and express their thoughts freely without fear of repercussion, regardless of their social status or identity. Indeed, Korean Constitutional Court ruled in 2012 that a law requiring people to use real names in internet fora is unconstitutional, since online anonymity plays a strong role in promoting free expression and thus, contributes significantly to the country’s democratic development.

In fact, according to OpenNet Korea, a Korean NGO promoting free expression and people’s right to privacy, it was lack of anonymity in Korean major websites that actually led to both the “NIS comments” and “Druking” scandals. Almost all Korean portal sites require people to verify their identities through their phones or social security numbers before signing up. People then count each ID as an individual person, and assume their comments or “likes” are an accurate reflection of public opinion. Therefore, promoting  — not removing — anonymity could help solve the problem, since people would be less likely to take online comments at face value. This in turn, would reduce the incentive for private actors or groups to use bots to flood comment sections.

Other regulations that have been proposed do not require people to use real names, but attempt to push portal sites to prevent the use of bots or stop the spread of disinformation — what we call privatized enforcement. One proposal, for instance, would  attempt to stop “fake news” by imposing huge fines, not only on those who make the news but also on the portal sites that allow people to post comments (the sites could be fined more than 10% of the revenue related to the violation). Such draconian measures restrict freedom of expression by discouraging people from expressing their opinions at all, and portal sites will likely remove the comment sections altogether to avoid paying the fines. Such legislation directly contradicts recent recommendations by David Kaye, the U.N. Special Rapporteur on the right to freedom of opinion and expression, to the United Nations Human Rights Council: “States should refrain from imposing disproportionate sanctions, whether heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression.”

Human rights framework can help

However, arguing that states should not impose excessive penalties on portal sites for comments does not mean that such websites are not at all responsible for what is posted. Even platforms such as Facebook or Twitter, which do not require the strictest identity verification, have a significant impact on public opinion, or at least are perceived to have this impact, given the response to the recent Russian disinformation campaigns. Therefore it is imperative that websites build or strengthen their mechanisms and policies  — based on human rights frameworks  — to thwart exploitation using fake accounts or bots to flood comment sections and disseminate disinformation. More importantly, they should be transparent about their policies with regard to how they track down and remove fake accounts or disinformation so that the users can better assess the trustworthiness of the information. Adding a disclaimer on the top of the comments section or other visible parts of the website, such as, “The comments and the number of ‘likes’ in this section do not necessarily represent the public opinion as a whole,” might also be helpful.

In addition, portal sites should put human rights law considerations at the center of their establishment and enforcement of policies. As Special Rapporteur Kaye’s report points out, human rights law has a global framework for ensuring freedom of expression on online platforms, which gives companies the tools to formulate policies and processes that respect democratic norms. Accordingly, firms should not implement mechanisms that could adversely affect rights to free expression, such as regulating comments based solely on their political views. Such content-based regulations could amount to censorship, severely limiting the legitimate activities of journalists or human right activists.

To make sure that rights to free expression are protected, therefore, we advise that portals work closely with digital rights organizations, human rights experts, and affected communities in developing their policies, rather than making secret arrangements with states or politicians, who may abuse platforms to sway public opinion in their favor. The scandals in South Korea should not be repeated.