"The Election's Over, So It's Fine?"···How to Handle the "Election Law Minefield" That Surges After the Outcome Is Decided

Case Interview with Attorney Kim In-won, Daeryun LLC

As the local elections came to a close, the fierce campaigning of candidates and the cheering fervor of supporters also drew to a close. Many people think that all campaigning and legal regulations end with the close of voting, but in practice there are not a few cases where complaints and investigations for violations of the Public Official Election Act rather begin in earnest right after the election. There are repeated cases where people relax, thinking "it's all over now," only to face fatal consequences such as invalidation of election or criminal punishment.

In particular, there are forecasts that this local election, with generative artificial intelligence and digital platforms deeply involved throughout the campaign, may see an increase in cases where ordinary voters and candidates alike misjudge the legal boundaries and become subjects of investigation. An ordinary voter, in the course of celebrating the victory of a supported candidate, or a candidate, in the course of conveying post-election greetings, can inadvertently become embroiled in controversy over election law violations.

In this regard, we met with Attorney Kim In-won of Daeryun LLC to hear the key legal issues cutting across the periods before and after the election and the practical points to note.

Q1. (Online activity before and after the election) During the election period, promotion through AI or social media was fierce. When ordinary voters share online posts or cheer for a supported candidate, what is the legal criterion to be most careful about, whether before or after the election?

▲ The part to be most careful about is "spreading false facts" and "slander." With the amendment of the election law, the spread of false and manipulated content such as deepfake videos has been prohibited from 90 days before the election day, and even after the election, spreading false information online can still be subject to punishment. A simple expression of political opinion or expression of support does not immediately become unlawful in itself, but if one spreads manipulated images, videos, or audio for the purpose of disparaging an opposing candidate, or repeatedly disseminates content whose facts have not been confirmed, issues such as the crime of publishing false facts under the Public Official Election Act or defamation under the Act on Promotion of Information and Communications Network Utilization may be raised together.

Q2. There are many cases where, watching the vote-counting broadcast on election night, supporters of a candidate whose victory is likely send congratulatory messages via social media or messenger. From this point, is there any election-law risk to be especially careful about?

▲ A simple congratulatory message or personal expression of intent does not immediately become unlawful in itself. However, it can become a problem when the character of an after-the-fact reward or compensation for campaigning is combined. For example, if a candidate or related person provides money, goods, or hospitality such as mobile gift certificates or meals to supporters, or conversely if supporters deliver expensive gifts to the candidate's side, there is a possibility of an issue as to whether the donation restriction provisions of the Public Official Election Act have been violated. In particular, organized, mass-style reciprocation through group chat rooms and the like is an area the Election Commission scrutinizes sensitively.

Q3. When voting ends and the outcome is decided, candidates come out to the streets to convey thanks or concession greetings. What acts actually become a problem in this process?

▲ Article 120 of the Public Official Election Act (prohibition of reciprocation after election day) restricts, in part, a candidate's reciprocation acts after the election day. Not all simple greetings are prohibited, but acts such as gathering supporters and providing meals or drinking sessions, or holding celebrations or consolation gatherings for residents, can lead to issues of donation or after-the-fact campaigning. Also, even after the campaign period has ended, if organized greetings are conducted in a manner tantamount to campaigning by using vehicles, loudspeakers, and the like, controversy over unlawfulness may arise. In actual investigations, the scale, consideration, and organized nature of the act are often judged comprehensively.

Q4. There are cases where, even without the candidate's attendance, supporters gather among themselves to celebrate the election victory or console the loss. Can voluntary gatherings among voters also become a problem?

▲ It is difficult to regard an ordinary private gathering of a social nature as immediately subject to punishment. However, depending on the connection with a specific candidate, the cost-bearing structure, and whether an organization was mobilized, there is a possibility that election-law issues may be raised. For example, if a specific person bears the entire cost of the gathering, or if circumstances of a funding link with the candidate's side are revealed, whether the donation restriction has been violated may become an issue. Ultimately, the key is whether it is a private gathering in the pure sense, or an organizational activity related to the election.

Q5. If, before or after the election, you unknowingly violated election law provisions and became subject to Election Commission enforcement or a request for investigation by an investigative agency, what is the first response to take?

▲ Public Official Election Act cases often proceed much faster than ordinary criminal cases. Since the investigation may be conducted within about 6 months, the initial response is very important. Panicking and deleting posts or shutting down group chat rooms can be interpreted as circumstances of evidence destruction and actually work unfavorably in the investigation. First, it is important to secure as much as possible materials such as the conversation content, the circumstances of posting, and screen captures that can explain the situation and intent at the time. Also, since election law, unlike ordinary criminal cases, involves intertwined elements of freedom of political expression and the fairness of the election, it is necessary to organize the response direction with an attorney experienced in election law practice from the early investigation stage.

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"The Election's Over, So It's Fine?"···How to Handle the "Election Law Minefield" That Surges After the Outcome Is Decided (Go to link)