Access to Public Information, Press Freedom, Privacy, Data Protection and Retention
South African Broadcasting Co. v. Thatcher
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The Seoul High Court held that the Korean Broadcasting System is a public institution and as such had to disclose a tape of a news documentary that had never been broadcast. The Court reasoned that the compelled disclosure does not violate media freedom under the Constitution or the Broadcasting Act because the purpose of the request was not to broadcast the information, and it could not be regarded as a restriction on, or interference with, freedom of the press or freedom and independence of programming.
This case analysis was contributed by Right2Info.org.
In November 2006, Han, a supporter of Dr. Hwang Woo-Suk, a disgraced biomedical scientist who had been accused of fabricating stem cell research, requested a tape from the Korean Broadcasting System (KBS). The tape was a news documentary dealing with the credibility of Dr. Hwang’s research which had been edited by a KBS TV producer without authorization, but had not been used for any KBS broadcast. KBS refused to hand over a copy of the tape to Han, as it had already been made available on the internet by an anonymous third party. Han sued to request the tape and the Seoul Administrative Court held that KBS, as an entity governed by the Media Law, is a public institution covered by Article 2-4 of the Official Information Disclosure Act (OIDA), and that the request for a copy of the tape should be granted as it was not a request for the purpose of broadcasting.
The Seoul High Court affirmed the ruling of the Seoul Administrative Court and ruled that the OIDA applied to the KBS. The High Court held that the requested tape constituted information under the access to information (ATI) law because, although the tape was edited by a KBS employee without permission, it was still prepared, obtained, and managed by KBS. Importantly, the Court ruled that compelled disclosure of the tape did not violate media freedom under the Constitution and the Broadcasting Act, however, it ordered any information related to an individual’s reputation and privacy to be removed. The Court reasoned that because Han’s request was not for broadcasting of the information, it could not be regarded as a restriction on, or interference with, the KBS’s right to freedom of the press or with its right to freedom and independence of programming.
In addition, the Court also held that the disclosure of the tape did not violate rights to privacy or copyright, as it was an unpublished work without any evidence indicating that KBS or the producer owned the copyright and any information related to an individual’s reputation and privacy would not be disclosed. Furthermore, the request could not be excluded as vexatious even though more than 1,065 others had submitted similar requests, as there is no limitation on the purpose of the request under the ATI law and the defendant was not requesting the tape solely for the purpose of interfering with KBS’s work.
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