The Anti-Leaflet Law: Between Free Expression and National Security

Under the previous Moon Jae-in administration, South Korea’s National Assembly passed an amendment to the existing Law on the Development of Inter-Korean Relations Act on December 13, 2020, banning South Korean citizens from engaging in cross-border propaganda activities, including the distribution of leaflets, commonly referred to as the “anti-leaflet law.” Through the course of the July 4th South-North Joint Communiqué of 1972, the Inter-Korean Basic Agreement of 1992, and the Panmunjom Declaration of 2018, South and North Korea have repeatedly agreed to ban leafleting to prevent mutual slander and create conditions favorable to rapprochement. Nevertheless, civilian organizations in the South persisted with cross-border communication, which led to retaliation from the North. Escalating tensions prompted South Korea to pass the amendment as a safeguard for its citizens; however, the new law interferes with the fundamental values of liberal democracy, breaching provisions enshrined in the South Korean Constitution and international law, namely the freedom of expression.

The anti-leaflet law prohibits South Korean citizens from broadcasting through loudspeakers, posting or distributing visual materials, and disseminating materials, including leaflets, in and across the Military Demarcation Line. South Korean civilian organizations have engaged in cross-border communication to send messages, both neutral, propaganda, and humanitarian aid. Proscribing these activities have a palpable impact on North Korean citizens, obstructing their access to information. As Article 19 of the International Covenant on Civil and Political Rights (ICCPR) stipulates, all people have the right “to seek, receive, and impart information and ideas of all kinds…” The North Korean government enforces wide-scale censorship to create a biased intellectual climate conducive to regime stability. Citizens are forbidden intellectual freedom, a right that is so essential to human life and dignity, with outside material often being the only sources of impartial, neutral information. Leafleting also plays a significant role in publicizing the human rights crises in the North. But limiting cross-border communication does not only restrict information-related activities. Humanitarian organizations such as Fighters for a Free North Korea (FFNK) have been sending various forms of aid to the DPRK. Park Sang-hak, a defector activist and the leader of FFNK, claimed he sent balloons to North Korea carrying COVID-19 aid, including masks, Tylenol pills, and Vitamin C supplements. He thought flying balloons over the border was the only means to save its citizens, as North Korea does not accept foreign medical aid.

The new amendment signals South Korea’s willingness to reduce hostility and open doors for its greater goal of unification. Open dialogue and pacification describe then-President Moon Jae-in’s North Korea policy at large, and his intention to remedy existing rifts in inter-Korean relations is clearly manifested in the anti-leaflet law. The DPRK has retaliated against leafleting multiple times, including anti-aircraft firing in October 2014 and the demolition of the joint liaison office, a symbol of inter-Korean reconciliation, in June 2020. The Ministry of Unification decided to address the problem immediately by passing the anti-leaflet law six months after the demolition.

Reconciliatory gestures embody South Korea’s desire and responsibility toward unification. As Article 4, Chapter I of its Constitution states, it “shall seek unification and shall formulate and carry out a policy of peaceful unification,” but based on the “principles of freedom and democracy.” Unification is a legal responsibility of South Korea, yet it must be a process that embodies the values of liberal democracy. The anti-leaflet law may foster unification, but not in the means that accords with the Constitution. Article 21, Chapter II of the Constitution specifically states, “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.” The anti-leaflet law breaches the freedom of speech, by preventing messages from being sent from one side of the peninsula to another. It creates a leeway for information control and is an evident contradiction to the said universal values.

At the same time, a democratic leadership’s responsibility is to maintain a secure and orderly society, as Article 37, Chapter II of the South Korean Constitution states, “The freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order or for public welfare.” This concept is reinforced by international law. The ICCPR stipulates the freedom of expression, but it also mentions that it may be subject to restriction for the protection of national security. Provisions in the law, as in this case, conflict with each other and invite a debate of precedence, leaving legislators to decide what is more “constitutional.” North Korea has a history of carrying out atrocious provocations and retaliations, including the sinking of the ROK Navy Corvette Cheonan which led to the deaths of many people. Therefore, South Korea’s emphasis on national security, even at the cost of compromising free expression, seems rational. Nevertheless, the rigid applications of the originalist framework would render the anti-leaflet law unjustifiable. In fact, Article 37, Chapter II of the ROK Constitution states, that even when such restriction (for instance, laws instituted for national security) is imposed, “no essential aspect of the freedom or right shall be violated.” Freedom of expression is definitely an “essential” right recognized under various international legal frameworks, and Article 37 makes it clear that national security cannot be used as a justification for its compromise.

The Ministry of Unification (MOU), as a means to justify the anti-leaflet law, published the document, “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets.” It explicitly states that the new legislation fulfills the responsibility of a state to “protect the lives and safety of the people” and establishes a “safety-net system” that allows 1.12 million residents in the border area to live without “fear of threat to their safety.” The administration cited North Korean provocations as evidence of leafleting causing tangible threats to national security. Furthermore, MOU argued that leafleting affects the local economy, as perpetual fear of retaliation stagnates the border region economy, particularly by intimidating active tourism.

The anti-leaflet serves the legitimate purposes of securing the safety of local residents and maintaining a robust local economy. Nevertheless, the excessive scope of its nature raises further concerns. When fundamentally essential values like free expression and national security conflict, extra scrutiny of the legislation is required. Flying over partial, derogatory, and hostile materials to incense North Korean authorities deserve legal probation; these are intentional content to create “harm” and should be prohibited by law. But cross-border communication activities are not limited to derogatory propaganda; they also include neutral information aimed to fulfill North Korean citizens’ right to know and humanitarian aid aimed to save North Korean lives. The anti-leaflet law does not provide a framework to distinguish harmful and benign forms of expression but bans all forms of cross-border communication in entirety.

The South Korean government should address national security concerns with precision, rather than adopting a law that is broad in scope and interferes with an essential human right. First of all, it should lay out a specific framework that distinguishes materials with the intent or capacity to harm from those that do not and prohibit activities that pertain to the former. Instead of imposing a full-scale ban, lawmakers should devise legislation that achieves its purpose within its constitutional purview. If the compromise of constitutional values is needed, it must be applied at the minimum level. Imposing bans via a material-specific framework is a desirable solution. South Korea should also seek alternative methods to ensure national security without compromising freedom of expression. For instance, it can publicly state that cross-border communication is not what its government endorses but a private activity that the government cannot legally prohibit due to its adherence to universal principles. By establishing leafleting as a private activity separate from the intentions of the government, South Korea can make its stance clear to North Korea.

On April 27, 2023, the South Korean Supreme Court reversed a decision from the lower court that declined the corporation establishment of the Fighters for a Free North Korea (FFNK) because of its engagement in cross-border activities. The Supreme Court stated:

“The dissemination of propaganda leaflets is a part of political and social activity that aims to inform North Koreans, who experience limited access to information amidst the confrontational situation between South and North Korea, on the reality of the North Korean regime…It is hard to deny the positive aspect of its roles of publicizing North Korea’s human rights problem both at home and abroad and arranging a continuous avenue for discussions on important public issues in our society.”

The court also denounced claims that the FFNK’s cross-border activities incite immediate danger, by stating North Korea’s demolition of the Kaesong Industrial Complex in 2020 is not sufficient evidence to prove that leaflet activities cause “bodily or life-threatening harm or serious danger.” This judgment does not directly impact the anti-leaflet law, but such claims from the judicial body signal a wave of change. Acknowledging the necessity and role of cross-border communication activities, a form of free expression, and the weak correlation that exists between these activities and security threats, the South Korean Supreme Court may just have indirectly criticized the nature of the anti-leaflet law. It is uncertain whether this decision will prompt further change, but it is absolutely necessary for the South Korean government to reduce the excessive scope of the current framework and revise it so that it better reflects Constitutional principles. Neglecting to commit to such fundamental values will put South Korea at an even greater risk.

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1 ROK Ministry of Unification “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”

2 A Partial Amendment to the Law on the Development of Inter-Korean Relations

3 Article 2, Part III, International Covenant on Civil and Political Rights

4 Jeongmin Kim, “Defector Activist claims he sent 20 balloons carrying COVID aid to North Korea,” NK News

5 ROK Ministry of Unification “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”

6 Article 4, Chapter 1, South Korean Constitution

7 Article 21, Chapter I, Constitution of the Republic of Korea

8 Article 37, Chapter II, Constitution of the Republic of Korea

9 Article 19, Part III, International Covenant on Civil and Political Rights

10 Article 37, Chapter II, Constitution of the Republic of Korea

11  ROK Ministry of Unification “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”

12 Ibid.

13 Ibid.

14 Daehee Lee, “Propaganda Leaflets’ Role in Publicizing North Korea Human Rights…,” Yonhap News

15 Ibid.