Global Freedom of Expression

Violation of the Protection of Communications Secrets Act

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    March 17, 2011
  • Outcome
  • Case Number
  • Region & Country
    Korea, Republic of, Asia and Asia Pacific
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Criminal Law
  • Themes
    Licensing / Media Regulation, Political Expression
  • Tags
    Content-Based Restriction, Corruption, Official Secrets, Public Officials, Public Interest

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Case Analysis

Case Summary and Outcome

The broadcasting of illegally obtained wiretapping recordings did not create a justifiable act negating illegality. In this case the broadcasting entity published an illegally obtained wiretapping report in violation of a preliminary injunction issued by a lower court. The injunction did not prohibit the dissemination of all information, just limited the information to a summary of the recording and prohibited the release of the names of the parties involved. The broadcasting entity violated this injunction by releasing more information than allowed.


This case concerns a defendant (MBC Broadcasting Company), which obtained a report of potential corruption in campaign funds. The lower court issued a preliminary injunction allowing the broadcasting company to publish the information but only a limited summary of it void of any named parties. The defendant violated this injunction by releasing the information with the names of the parties involved. The decision of the Seoul High Court was affirmed by the Supreme Court stating that the disclosure of this information was not justified.

Decision Overview

The Seoul High Court ruled that the acts of defendant were not justifiable for four reasons: (1) the defendant did not disclose this information to show that the state agency was engaged in illegal wiretapping, but rather to attract public attention because the defendant could have released a summary of the information that complied with the lower court’s preliminary injunction; (2) the defendant obtained the information for the sole purpose of public disclosure; (3) the defendant could have achieved the purpose of accusing the state entity of illegality by simply producing the information in a summary instead of disclosing the specific names of the parties; (4) finally, although there was a large public interest in this case that public interest could have been served by simply reporting a summary of the contents of the recording instead of the recording itself. This was a direct violation of the Protections of Communications Secrets Act.

The decision of the Seoul High Court had several dissenting Justices. The dissenting opinion emphasized the important interests in freedom of speech and noted that the majority opinion “effectively disallows any and all disclosures of private communication.” The dissent also argued that allowing disclosure of private facts in certain “emergency” situations where the public interest far outweighs the interest in retention of information only is a very rare circumstance and puts too great of a burden on freedom of speech. Further, the dissent disagreed with the majority’s interpretation that the media’s aggressive and active pursuit of this information was inappropriate. This characterization negates the purpose of the media, which is to actively pursue information for public dissemination. The dissent emphasized the importance of utilizing a balancing test when such important interests are against each other (freedom of speech and protection of information), and argued that in this balancing test, “factors such as the process in which a private communication was acquired, the purpose of reporting such communication and its surrounding circumstances, the contents of the communication in question, and the mode of reporting should be considered as a whole.” Therefore, the dissent asserted that punishing the media in this case for producing this information would require the media to neglect its responsibilities and create an unreasonable restraint on freedom of speech.

The Supreme Court affirmed the decision of the Seoul High Court.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

The Court’s ruling in this particular case is relatively reasonable because it allows the media to produce information but limits the public information to a summary of the original content in order to protect the identity of the parties involved. However, as the dissenting opinion notes, this case could potentially establish precedent that allows the interest in protection of information to outweigh the public interest in the production of information which would produce a chilling effect on the media. Therefore, the decision seems to produce a mixed outcome for freedom of expression.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Official Case Documents

Official Case Documents:

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