Urgent Appeal to Special Rapporteur on the promotion and the protection of the right to freedom of opinion and expression
1. Case
: Prosecutors’ indictment of producers of ‘PD notebook’, the documentary program for an investigative report on mad cow disease and making writer’s personal emails public during investigation
2. Background
‘PD notebook’, a documentary program of MBC, one of mainstream broadcasting stations, aired an episode of ‘Is US beef safe from mad cow disease?’ and its sequence on April 29 and May 13 2008. Hereupon, Cheong Wae Dae (the presidential office in South Korea or Blue House) and Ministry for Food, Agriculture, Forestry and Fisheries requested an investigation of ‘‘PD notebook’’ producers on charges of defamation and telecasting distorted and manipulated facts of mad cow disease to the prosecutors. Seoul Central District Prosecutors’ Office allocated ‘PD notebook’ case to Im Soo-bin, the senior prosecutor of the Criminal Investigation Department. Producers and two writers of ‘PD notebook’ have refused summons on three previous occasions. On Jan 7 2009, Im Soo-bin, the senior prosecutor of the 2nd Criminal Investigation Department tendered resignation, and then Seoul Central District Prosecutors’ Office reallocated ‘PD notebook’ case to Cheon Hyun-joon, the senior prosecutor of 6th criminal investigation department. On Mar 3, Chung Woon-chun, former Agriculture Minister indicted six producers of ‘PD notebook’ on charges of defamation, the prosecutors attempted search and seizure of producers of ‘PD notebook’ email and phone records. On Mar 25, the prosecutors arrested Lee Chun-keun, a producer of ‘PD notebook’ and released after two days of questioning. Also the prosecutors attempted to conduct a search and seizure at MBC headquarters, yet were obstructed by union members’ resistance. On Apr 28, prosecutors also detained other producers and writers and then released. On Jun 18, the prosecutors issued indictment on charges of defamation against former Agriculture Minister Chung Woon-chun, and further on charges of disrupting operations of US beef importers and sellers.
3. Information about infringement of freedom of expression
(1) Invalid indictment of anti-government media
The prosecutors’ unjust indictment of journalist brought mistrust to Lee administration and their movement cutting off criticism of government policy and gagging media. “If the prosecutors regard criticism of mass media for the government policies as defamation, neither criticisms of mass media nor roles of mass media were worked properly,” said Kim Hyung-tae, the lawyer for ‘PD notebook’ producers on a press interview. Park Ju-min, a lawyer of MINBYUN – Lawyers for Democratic Society commented that former minister filed charges of defamation to critical report in order to blockade any sort of opposing opinions to government. Besides, the prosecutors’ main reasons of indictments, charges of defamation and disruption of operation, could raise another criticism. “PD notebook’ program is not aimed at criticizing the government policies but at delivering opinions which are different from that of the government,” said Park Kyung-shin, Korea University Professor, and he also insisted that PD notebook’s report cannot be subject of defamation. Lawyer Min Byung-hoon pointed out the prosecutors’ unjust indictment by mentioning that disrupting operation should prove not only the causal relation between the report and the damage of U.S beef importers but the intention of producers to disrupt business of importers and sellers.
(2) Debate over the disposing the writer’s personal e-mail
The prosecutor investigation team made Kim’s personal email public with saying that “We prove that the accused was evilly disposed when she took part in producing the program, episode of ‘mad cow disease’.” Hereupon, Kim Eun-hee insisted that “Antipathy or negative opinions against the government shown in my e-mails are about the freedom of thought and the inviolability of privacy which should be guaranteed by the Constitution.” and she indicted five prosecutors who were in charge of the investigation, including Jeong Byeong-du, a senior prosecutor at the Seoul Central District Prosecutor’s Office, for the violation of the privacy and defamation of character. Meanwhile, legal observers pointed out that making Kim`s e-mails public is clearly against the positive law. “Disclosing the e-mails is clearly against ‘the duty of privacy observance’ in Communication Privacy Act 11th clause,” said Park Ju-min, a lawyer of MINBYUN – Lawyers for Democratic Society- and he also criticized the practice of the prosecutor violating the freedom of thought. This is also deviated from ‘the standing rules on Human Rights Protection during Investigation’ established by the prosecutors themselves. ‘the regulation of Enforcement Ordinance 65th clause’ stipulates the information about the character or privacy of the accused which are not directly related to the suspicion should not be made public.”
4. Information on the source of the communications
Donghwa LEE
International Coordinator
MINBYUN-Lawyers for a Deomocratic Society
5F, Sinjeong B/D, 1555-3, Seocho-dong, Seocho-gu, Seoul, Republic of Korea, P.O. 137-070
Tel: 82 2 522 7284 Fax: 82 2 522 7285
E-mail : m321@chol.com
HP : http://minbyun.org
<Annex 1>
The Hankyoreh, June 20 2009
http://www.hani.co.kr/arti/english_edition/e_national/361464.html
‘PD notebook’ indictment generates email search and seizure controversy
Writer files suit against prosecutors for violating Communications Privacy Act, while some legal scholars say prosecutors’ methods suppress freedom of thought
» Kim Eun-hee, a writer for MBC “‘PD notebook’” documentary program files charges of dereliction of duty and defamation Friday against the prosecutors who disclosed the personal content of her e-mails.
Objections are growing against the decision of the Public Prosecutor’s Office to disclose the content of three personal e-mails by Kim Eun-hee, age 38 and a writer for the MBC documentary program “‘PD notebook’,” in the indictment of five producers and writers for the show Thursday. Some legal observers are commenting that this situation poses an opportunity to remedy law enforcement’s practice of engaging in a search and seizure of e-mails, a practice that has been used haphazardly and without any clear regulation.
One of the biggest problems legal observers have been pointing to in law enforcement’s practice of e-mail search and seizures is its excessive scope. Currently, investigators can give a portal site the resident registration number of the person under investigation and ask that the site disclose all e-mail content accumulated in the account since the sign-up date. A representative case occurred last year when prosecutors collected seven years worth of e-mails from Jou Kyung-bok during an investigation of possible violations of South Korea’s campaign finance laws during last year’s elections race for the superintendent of the Seoul Metropolitan Office of Education seat.
“Investigating bodies normally specify they want 10 percent to 20 percent, and since they do not indicate if they are looking email that has been sent, received or deleted, we have no choice but to turn over everything,” said an employee of Daum Communications who appeared as a witness in Jou’s trial on June 4.
In a rapidly changing communications environment, e-mail search and seizure has the same effect as after-the-fact eavesdropping, and the problem is that related regulations have not been able to catch up with this reality. “Investigative bodies consider e-mail search and seizure in the same vein as going to someone’s house or office and taking their mail,” said a senior prosecutor with the Supreme Prosecutor’s Office. “But there is a different content aspect to today’s e-mail when compared to mail seized in the past, in that it can contain material pertaining to private areas of personal life,” the prosecutor added.
This view regarding personal information is supported by the fact that e-mail was ultimately responsible for bringing the relationship between Shin Jeong-ah and former presidential aide Byeong Yang-kyoon to light. “Just as law enforcement investigates phone records and text messages on a regular basis, the trend is that e-mail is becoming increasingly significant to investigations,” the senior prosecutor added. Some observers are also commenting that this atmosphere is aided by the courts, which issue warrants to prosecutors for comprehensive email search and seizures without parameters.
Another problem has been noted when the collected e-mail is revealed to outside parties according to the needs of investigators. In their search and seizure of Kim’s e-mails, the team of prosecutors investigating the ‘PD notebook’ case received message for a period of seven months spanning from January to July 2008. Although this is not an indiscriminate period of time, Kim has said, “Prosecutors asked a lot of questions about my private life, and that would be difficult to do unless they have already looked into it.”
Hwang Hui-seok, an attorney with MINBYUN-Lawyers for a Democratic Society, says, “Disclosing e-mails content in itself is a violation of the Communications Privacy Act and as a result, we find ourselves in a difficult situation where prosecutors are breaking the law and we will have to accuse them and ask that they be punished.”
Korea University Professor Park Kyung-shin says, “They have suppressed freedom of thought by placing information unrelated to the investigation in with the charges.”
Some politicians are joining in the push to resolve this problem. Democratic Party Lawmaker Park Young-sun, who spearheaded an amendment to the Protection of Communication Secrets Act on June 4 requiring investigators who search and seize an individual’s e-mail to notify that person of the fact within 30 days of the investigation’s close, announced that when the June extraordinary session of the National Assembly meets, she plans to push for an amendment to the Criminal Procedure Law stating that investigators must specify a time period when applying for a search and seizure warrant for e-mails.
Meanwhile, Kim Eun-hee filed charges of dereliction of duty and defamation Friday against the prosecutors who disclosed the content of her e-mails. The charges are against Jeong Byeong-du, a senior prosecutor at the Seoul Central District Prosecutor’s Office; Jeon Hyeon-jun, head of the office’s Second Detective Division; and prosecutors Park Gil-bae, Kim Gyeong-su and Song Gyeong-ho. She also filed charges against Chosun Ilbo president Bang Sang-hoon for defaming her character in an editorial entitled “‘PD notebook’ Writer, Fanatical with Hostility towards Lee Myung-bak.”
Please direct questions or comments to [englishhani@hani.co.kr]
<Annex 2>
The Hankyoreh, June 19 2009
http://english.hani.co.kr/arti/english_edition/e_national/361298.html
Prosecutors indict producers of ‘PD notebook’ on charges of defamation
Popular protest calls public prosecutors’ investigations another government attempt to gag the media
» Jeong Byeong-du, a vice chief of Seoul Central District Prosecutor’s Office announces the indictment of producers and writers associated with ‘PD notebook’’s investigative episode on mad cow disease at their office located in Seoul’s Seocho district, June 18.
Public prosecutors investigating MBC “‘PD notebook’” documentary program producers and writers for an investigative report on mad cow disease aired on April 29, 2008 were issued an indictment without detention Thursday. In addition to charges of defamation against former Agriculture Minister Chung Woon-chun, prosecutors are also pressing charges of disrupting the operations of U.S. beef importers, which has led to an outpouring of criticism against what is being called an excessive investigation.
The Sixth Criminal Division of the Supreme Prosecutors’ Office (SPO), headed by Jeon Hyeon-jun, booked ‘PD notebook’ senior producer Cho Neung-hee, age 48, producers Song Il-jun, age 51, Kim Bo-seul, age 32, Lee Chun-geun, age 33, and writer Kim Eun-hee, 38 without detention on charges of defamation and disruption of operations. The producers served on the ‘PD notebook’ production staff in 2008 when the program in question was broadcast.
“The ‘PD notebook’ producers exaggerated the dangers of mad cow disease from downer cows and presented the false information that Aretha Vinson died of the human form of mad cow disease after eating U.S. beef,” the prosecutors said. They also stated that the producers defamed the character of Minister Chung and Min Dong-seok, 57, then Deputy Minister of Agricultural Trade Policy for the Agriculture Ministry, by “distorting and exaggerating basic facts directly linked with the dangers of mad cow disease from U.S. beef.” Prosecutors added the episode’s comparison of the ministers to “pro-Japanese traitors” also represented defamation.
Jeong Byeong-du, the SPO senior prosecutor who directed the investigation, said that errors in the reporting “were not deemed to be trivial mistakes, but the result of a malicious intent or a blatant lack of fairness.” Prosecutors also disclosed content from e-mail written by Kim, claiming that producers distorted the broadcast based on internal political motives. Prosecutors also applied charges of disruption of operations, stating that the ‘PD notebook’ report led to damages of over 10 billion won in losses in participating stores and sales contracts for importers and sellers of U.S. beef.
Following the indictment, MINBYUN-Lawyers for a Democratic Society released a statement in which they said, “The public prosecutors, who should be the guardians of human rights, democracy and the public good, are blindly following the government like marionettes.”
The National Union of Mediaworkers President Choi Sang-jae said, “As seen with the investigation into the press consumerism advertiser boycott, the investigation of the Minerva case, and so on, this ‘‘PD notebook’ indictment’ also shows that the prosecutors have thoroughly become the ladies-in-waiting for the powers that be.” Choi added, “By gagging media outlets that oppose the prosecutors and administration, they are suppressing press freedoms and leading to self-censorship among journalists.”
Some 100 law professors from all over the country have made plans to issue a statement urging the prosecutors’ cessation of activities destructive to democracy on Friday with direct reference to the investigations of ‘PD notebook’ and the Korea Press Consumerism Organization’s advertiser boycott campaign. In the statement, they plan to say, “Expression of opinions critical of the government are being targeted for investigation because they receive popular support.” They will also declare, “The prosecutors’ stubborn attempts to suppress critics of the administration are merely dressed up in legal packaging and are no different from the actions of investigative bodies during the military dictatorship.”
Meanwhile, Cheong Wa Dae (the presidential office in South Korea or Blue House) Spokesperson Lee Dong-kwan says the prosecutors’ investigation “revealed without question that the ‘‘PD notebook’’ broadcast on mad cow disease was on the whole distorted and manipulated.” Lee added, “It is shocking, and I cannot contain my dismay.”
Please direct questions or comments to [englishhani@hani.co.kr]