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Han v. Korean Broadcasting System

last modified Aug 22, 2012 09:12 AM

Case number:
2007 Nu 24731
Country:
South Korea
Date of decision:
2 July 2008
Court / Arbiter:
Seoul High Court ( Appellate )

Relevant law :

Decision:

Korean Broadcasting System is a public institution and as such has to disclose a tape of a news documentary that has never been broadcasted. Disclosure does not violate media freedom under the Constitution and the Broadcasting Act because the request was not for broadcasting of the information and it cannot be regarded as a restriction to or interference with freedom of the press or freedom and independence of programming.


Keywords:
Electronic information (including websites, metadata, email, audio, visual and other records)
Frivolous or vexatious request
Media / Press
Privacy (harm to private interests, including life, health, safety)
Private entities (including entities that perform public functions or receive public funds, entities that manage privatized assets, state owned enterprises)
RTI law

Case details:

Facts

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 of news documentary dealing with the credibility of Dr. Hwang’s research  had been edited by a KBS TV producer without authorization, but had not been used for any KBS broadcast. KBS refused to produce 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, and that the request of the tape should be granted as it was not a request for broadcasting.

Decision

The Seoul High Court affirmed the ruling of the Seoul Administrative Court and ruled that the Official Information Disclosure Act (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 (p.16). 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 to 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 a copyright ownership to the KBS or the producer 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.

Resources:

More information about the case in Korean language.