&#91VIEWPOINT&#93SBS search warrant is troubling

It is rare that the prosecution should obtain a search warrant against a media company. The Cheongju Public Prosecutors Office, which is investigating criminal charges against “secret video recording” lodged by a former Blue House secretary, Yang Gil-seung, who was recorded while being entertained at a nightclub, has tried to execute a search and seizure warrant to seize the tape broadcast by Seoul Broadcasting System. The prosecution had requested SBS to turn over the original video tape and other materials it acquired from its news source. SBS refused, claiming that the original recording was little different from the portion broadcast and that it was obliged to protect the identity of its source.
This incident can pose a grave threat to the freedom of the press in two ways. First, it concerns a search warrant on a media organization and second, it concerns protecting the identity of those who provide information to the press. Let’s look at the search warrant problem first. It is very rare that a search warrant be issued on a media organization. Even in the United States, with its strict judicial implementation, sear-ching a media organization or a media affiliated worker is prohibited in principle. According to the Privacy Protection Act, enacted in 1980, the government may not seize or investigate news materials in the possession of the media. The exceptions are when there is a threat to national security, when the case concerns heinous crimes such as the production of child pornography, when the media person is the person concerned in a crime or when an emergency search is necessary for the protection of life.
Another problem is the identity of the news source. Protecting the identity of a news source is a core principle of the freedom of the press. If the media are unable to keep their promises to the news source that his or her identity will not be revealed, the essential functions of the media such as forming public opinion and keeping watch over public authorities would be endangered. Poten-tial news sources would avoid providing information and the media coverage of sensitive social issues or the censure of wrongdoings by those in authority by the media would wither. Had it not been able guarantee the anonymity of its news source, the American press would not have been able to uncover the illegal doings by the Nixon administration that led to the resignation of the president. It must be kept in mind that in advanced countries where corruption and bribery have been contained successfully, there are strict judicial mechanisms protecting the identity of news sources, especially inside whistle-blowers.
Moreover, our existing criminal law provides that confidential information obtained on the job by professionals such as lawyers, accountants, doctors and members of the clergy is not subjected to searches. This is not only to protect the privacy of their clients but to protect the trust between the professional and the client. When this trust is broken, the elementary functions of society become paralyzed. As lawyers and doctors are obliged to protect the secrets of their clients and patients, so should journalists and reporters protect those who have provided news information to them on condition of anonymity.
Of course protecting the identity of news sources is not an absolute right. Media organizations in the United States received an average of two to three subpoenas from a court every year ordering them to reveal the identity of their news sources. Often, journalists are penalized for contempt of court when they refuse this request. That is why there is such a thing called a “shield law” in the United States. This law provides that journalists should not be summoned by the court to reveal the identity of their news sources. The court can ask for the identity of a news source from a journalist when the information procured is an important piece of evidence for the investigating body or the litigants, when there is an urgent and germane reason to do so and when there is no way to obtain that information from anyone else but the journalist concerned.
Even if the videotape that SBS obtained was recorded illegally, it contained material that the television station, as a media organization whose duty is to play watchdog to the public behavior of public authorities, could broadcast. But if SBS had televised the recording even though it knew that the news source was intentionally using it for ill intentions, it could not avoid moral censure. The television station should also cooperate with the prosecution’s investigation. Nevertheless, cooperation with the investigation and a search warrant are two different things. Should the prosecution try to search SBS or demand the identity of the news source, it should be able to provide sufficient reason for doing so. It must show evidence that the search is imperative to the progress of the investigation or that the material sought is urgently needed for the prevention of another crime.
The court and the prosecution should show a more sober attitude on the freedom of the press.

* The writer is a professor of journalism at Soonchunhyang University. Translation by the JoongAng Daily staff.

by Chang Ho-soon