Sunday, May 13, 2007

Publish and be damned is not a wise choice

"Korea`s laws on libel are confusing and open to abuse," one of the lawyers contacted for this article told The Korea Herald.

"They are a weapon that can be used by innocent victims of media abuse, and equally they can be used as a shield to protect the guilty, often allowing them to commit repeat offenses."

And falling afoul of these laws is so easy, as American Joe McPherson is finding out.

McPherson, is an English teacher, writer, and a well-known and respected blogger. His blog, "ZenKimchi" has been extensively quoted around the world, and is full of useful and interesting facts about Korea, especially Korean food.

In the words of fellow blogger, Michael Hurt from "Metropolitician," Joe is a good guy. "He`s got much love for Korea, as evidenced by his site, his love of Korean food (he has even been interviewed by The New York Times), and has done much to extol the virtues of Korean food to both Westerners who come here as well as to the outside world. He has even been in a book talking about all the great things Korea has to offer."

▲Disputes are dealt with at the Labor Office in Uijeongbu. Just getting here is a trial in itself. [Chris Gelken/The Korea Herald]

McPherson certainly doesn`t seem to fit what is largely an unfair stereotypical image so often portrayed in the local media of an unqualified language-tourist, just here for the money, the parties and the girls. Yet, he is now facing the possibility of a law suit for alleged libel. If a fine of more than 2 million won ($2,100) is imposed, he could also face the prospect of deportation.

"Somehow, if an employer doesn`t pay you your wages or severance, or takes money from your paycheck without explaining or having you agree to it, they can pretty much get away with it," McPherson wrote. "Even if you win your case (at the Labor Department and civil court) there is little legal framework to force the employer to pay you."

In July 2006 McPherson filed a complaint against his hagwon for failure to pay his end-of-contract severance money.

"In August the Labor Board determined that the hagwon had to pay me everything I was due," McPherson said. "It came to about 6 million won, so we are not talking about a small amount of money here."

But having an official and legal piece of paper saying you are due this money, and then actually getting the money, are two quite different things.

In February 2007 McPherson finally went to civil court, where the judge not only upheld the Labor Board decision, but awarded McPherson a further 2 million won, bringing the total to 8 million won. The hagwon is still refusing to pay, and has lodged an appeal. An end to the process is nowhere in sight.

"Yet if you want to complain about it on the internet, which is often the only venue for us, it`s a crime," McPherson told The Korea Herald. "I received notice that the hagwon filed a complaint and I am being investigated by the police for criminal libel."

Brendon Carr, a foreign legal consultant with law firm Hwang Mok Park, had some striking comments on Korea`s libel laws. "Unlike the United States, Korea does not exalt free speech as a constitutional right," Carr told The Korea Herald. "However, the Korean Constitution does recognize a right to reputation. In other words, reputation enjoys higher standing under Korean law than free speech. This same idea is common in European countries; America is unique in the degree to which speech is protected. It`s possible that Korea is unique in the degree to which reputation is protected."

Essentially, the terms of Article 309 of the Korea Criminal Code say that writing something that can hurt the reputation of another, regardless of whether or not it is true, can leave the writer/publisher open to prosecution.

"The Art. 309 is basically a club by which the government and business interests muzzle the press," Carr said. "More than 100 criminal complaints are lodged each year against press outlets, and hundreds of cases go to the Communications Ethics Board for non-criminal resolution of disputes. Accordingly, the press here is much more cautious about reporting things where the identities of the wrongdoers may be discovered."

However, the Criminal Code does include the following exception contained in its Article 310: If the facts published are true and disclosed solely for the public interest, the act of publishing shall not be punishable.

Currently this privilege does not extend to bloggers on the internet.

"Truth is only a defense for the press, not for the general citizenry. And the publisher must prove the disclosure was solely for the public interest," Carr said, "and this is where most of them get punished."

The Korea Herald outlined a couple of possible story scenarios relating to cases such as McPherson`s, and "hagwons from hell."

Carr had these words of caution, "The Article 310 exception of `public interest` is much narrower than you think. My own judgment is that there is no public interest served by telling the story of the hagwon from hell."

English teachers, Carr said, "are not `the public` - they are a small segment of it. The rest of the public has no interest in being warned about how these hagwons may or may not treat their foreign employees."

The Korea Herald would be forced to disagree. Estimates vary slightly on the number of foreigners working legally as English teachers here in Korea, but each and every one of them comes into contact with hundreds of Korean children on a daily or weekly basis.

A teacher who is being victimized or treated unfairly by a hagwon is an unhappy and disgruntled teacher. No matter how professional that teacher may be under normal circumstances, when they are being cheated out of their lawful earnings, when they feel they are being let down by the legal system, then their performance will obviously suffer. A distracted teacher is a poor teacher, and consequently the students will suffer too.

According to some estimates, Korean students spend over 15 trillion won a year on private English classes. This is based on 11.2 million students spending an average of 1.2 million won a year for classes in hagwons or private English teachers. Korea spent the most on private education in 2006 among the 30-member OECD, accounting for 2.9 percent of GDP.

A Labor Department official recently told The Korea Herald that she saw "so many English teachers" in her office, and said hagwons - "the bad ones" - knew how to manipulate the system. "The process takes so long, many English teachers eventually just give up," she said. "The law needs to be changed. Hagwons must be held accountable."

It is, therefore, impossible to consider the case of English teachers in a vacuum, saying they are only a minority segment of "the public." They are a significant minority who come into contact with, as we have just mentioned, more than 11 million students on a daily basis, and are in the front line of a multi-trillion won industry. Consequently, anything that happens to these teachers, especially if it is at the hands of unscrupulous hagwon owners, and if it has the potential to affect the quality of the education they provide, should most certainly be of paramount public interest.

Parents certainly have the right to know if the hagwon that has enrolled their children, that is taking their money and promising a quality education, is or has been involved in legal disputes with its teachers. A hagwon that shows little respect for its teachers, and even less respect to orders from the court, is unlikely to show much respect to its students or their parents.

By Chris Gelken


Got a problem? Who you gonna call?
-Korean Herald, Tues. April 11

You're a teacher. Your school or hagwon has just blatantly broken the terms of your contract. After 11 months of dedication and stellar service, the director suddenly accuses you of being a bad teacher, among other things, and gives you your marching orders. He then cheerfully tells you he has contacted immigration, he won't give you a letter of release, and by the way, you have 14 days to get out of town.
Who do you call?

You may be tempted to call The Korea Herald - plenty of teachers have - but the Seoul Help Center is actually your best bet. Or you could try the Labor Department. They have an English language website and there are various other resources on the internet. But if you are determined to fight this through to the bitter end to assert your rights, be prepared. You are holding very few cards and the deck is stacked against you.

The Uijeongbu District Office of Seoul Regional Labor Office. Just getting there for your hearing is a trial. [Chris Gelken/The Korea Herald]

First off you have to know your "enemy." Frankly speaking, the hagwon sector has become just too big and too influential. According to some estimates, Korean students spend over 15 trillion won ($16 billion) a year in private English classes. This is based on 11.2 million students spending an average of 1.2 million won a year for classes in hagwons or private English teachers. Korea spent the most on private education in 2006 among the 30-member OECD, accounting for 2.9 percent of GDP.

Given the lack of oversight, the sector has become a cash cow for criminals - or the criminally inclined - and archaic labor laws just make it so easy for them to use, abuse and discard what is essentially a limitless supply of witless and gullible foreigners in search of their "Asia experience."

Obviously, the number of hagwons who do engage in illegal or unfair practices against their teachers are in the minority. But they are a very significant minority.

If you are unfortunate enough to find yourself the victim of breach of contract, then you have to consider your immediate financial situation. If you are short on cash, then to be perfectly honest, in the majority of cases the best advice is suck it in, take it on your chin, and go home.

Sounds tough, doesn't it? Sounds so unfair and even stupid when you consider how harmful this can be to the good image that Korea works so hard to create through its Korean Wave, its cultural exchanges, and its bids to host major events such as the Winter Olympic Games.

But you may be surprised to learn that you are not alone in this frustration. There are plenty of Koreans who feel exactly the same way.

It may also come as a surprise that among the most "frustrated" are junior and mid-level officials at the Labor Department who have to deal with foreign complainants on a day-to-day basis.

"I am so, so sorry," an official at the Labor Department in Uijeongbu said to The Korea Herald. "I see so many foreign English teachers here, but because of the laws, sometimes they blame us and get angry with us."

So, you have lodged your complaint and have been awarded a hearing before a Labor Department inspector. Getting to the office in Uijeongbu is trial enough: an hour on the subway from City Hall in downtown Seoul, and then a 6,000 won taxi ride from the station.

You are tense; the lousy traffic from the station to the office has you on the verge of exploding. You are so anxious to make a good impression. You are sure you gave yourself enough time to get there, but every traffic light is red and the local council chose that day to dig up the road.

Still, you arrive with minutes to spare. Then you are told no representative from the school has shown up. They haven't called the department to ask for a rescheduling and they certainly haven't called you. They just didn't bother to show up. And why should they?

The law, as it stands, does not compel a hagwon director or his representative to attend a Labor Department hearing. They can ignore the notice to attend a hearing with no penalty whatsoever. In fact, they get three opportunities to fail to attend. They have "the freedom" to do this, the official said.

"It they don't come, then we send them a letter with another date for the hearing," the Labor official told The Korea Herald. The Labor Department does not even have the right to ask why the director did not attend, or demand the courtesy of an apology.

"They know they can do this, the bad ones, and they abuse the system," the official said. After three non-appearances the case is referred to the prosecutor's office.

"But then, even if they are found guilty, the fine is so small it is nothing to them," the official explained, "and often the teacher has already left the country because the process takes so long."

If the teacher leaves Korea before the case goes to the prosecutor, then the whole thing is dropped. "All the director has to do is wait," the official said, "it is so easy for them to win."

And with the paltry fines handed out by the prosecutors, the hagwons win even when they lose.

It is hardly surprising, therefore, that the Labor Department inspector assigned to any particular case may appear disinterested, unenthusiastic and perhaps even unhelpful. In many cases, it is a pointless, and certainly thankless, process.

The law, the official insisted, needs to be changed. Hagwon directors need to be held accountable, and the fines for any wrongdoing have to be significant enough to prevent any repeat offenses and serve as a warning to others, the official told The Korea Herald.

"Korean teachers sometimes also face this problem in hagwons," the official said, "but they usually have family support here and obviously have the time to fight the case." So for foreigners, the official told The Korea Herald, the process needs to be sped up.

So what do you do when faced with this reality?

Lodge your complaint with the Labor Department, and armed with a certificate that you are involved in a dispute with your employer, immediately head off to the Immigration Department. If you get to them before your hagwon director, they will put a hold on your visa so you can remain here to fight the case.

The next move should be to contact your embassy and alert them to your status, and the fact that you may require financial assistance. They can help in putting you in contact with family and friends back home and facilitate the transfer of money. But don't expect any handouts, because you won't be getting any.

And then call The Korea Herald. We love a good story.

By Chris Gelken


'Unqualified' foreign teachers busted in crackdown

A 38-year-old Bulgarian who came to South Korea on a tourist visa in July 2001 found he was treated special here, at least compared to other illegal aliens, especially those from Southeast Asian countries, who have to work for lower wages and live on the run from the law.

The Bulgarian was hired as a "native lecturer" at a foreign language school in Ansan, Gyeonggi Province, and earned about 2 million won (US$2,160) a month. He lacked formal qualifications and came from a non-English

speaking country, but he got his teaching job because he can speak some broken English and is white.

Two other foreigners - a 27-year old from Columbia and a 32-year-old from Panama- were also hired as as English teachers for the same reasons, though they are illegal immigrant workers.

Illegal aliens who have found teaching jobs in the greater Seoul region sometimes pay 25 to 30 percent of their income to the middlemen who find them their jobs, in order to stay relatively "safe" from legal authorities. Some are caught, of course, and deported to their respective countries.

On May 9, the Gyeonggi Provincial Police Agency (GPPA) said it found 46 illegal immigrant workers who were teaching illegally at foreign language -including English and Mandarin Chinese- institutes on tourist visas. In addition, police arrested 56 South Koreans who hired the foreigners or found them their job, on charges of violating immigration-related laws.

The foreigners were able to hide their lack of English skills by teaching just the alphabet or counting numbers for children in kindergarten-level classes, police said.

Kim Su-gwang, head of the police agency's investigation for foreign crimes, said, "Those foreigners came here after watching Internet ads that luring them with money and tourist opportunity in exchange for language skills."

"The case shows you a lot about South Korean English education," Kim said.

Of the arrested foreign language teachers in the latest roundup, there were 17 Chinese, 10 Canadians, 7 Americans, 4 New Zealanders and 8 foreigners from non-english speaking countries.

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