Request for a Corrective Report case

[3 KCCR 518, 89Hun-Ma165, September 16, 1991]

A. Background of the Case

This case held that the provisions of the Registration, etc. of Periodicals Act requiring a corrective report as a means to protect right to personality from the media did not infringe upon the freedom of press.

Article 16 (3) of the Act allows a person whose right to personality has been infringed by stories in periodicals to request a corrective report, and Article 19 (3) authorizes the court to dispose of that issue through preliminary orders.

The JoongAng Ilbo, published by the complainant, was sued by the Pasteur Dairy corporation in the Seoul District Civil Court for a July 23, 1988 story concerning Pasteur Dairy which appeared in its Reporter's Notepad section. The JoongAng Ilbo was ordered to print a corrective material when Pasteur Dairy prevailed in the action for a corrective report pursuant to the above statute. The complainant moved for constitutional review of the statute for infringing freedom of press and the press' right to trial, and when denied, brought a constitutional complaint.

B. Summary of the Decision

The Court upheld Article 16 (3) and 19 (3) of the Act elaborating on the nature of right to request a corrective report as follows:

Although the relevant provisions mention "correction", they in reality mean a right to request that the reporting agency publish rebuttal by those affected by the report. Hence, right to reply. Reply does not aim to contest the truth of the report or compel correction of a false report. A right to reply gives the injured person an opportunity to present reply to the factual reports by the press, thereby protecting to his right to personality. It also enhances the objectivity of the report and thus the systemic security of the press by allowing the defamed victim to participate in generating a balanced public opinion. Obviously, such a right is derived from the general right to personality, right to privacy, freedom of privacy guaranteed by the Constitution.

Right to a corrective report restricts the editing and the layout of the periodicals and may impose indirect limitations on reporting, and therefore should adhere to the rule against excessive restriction so that all rights complementing freedom of press are given the maximum effects. The right to reply has a legitimate end and applies only to reply of factual assertions (Article 16 (1)). It allows a periodical to refuse to carry the reply under certain circumstances, narrowing the permissible scope of exercise of the right (Article 16 (3)). The Act requires the request to be made within certain time limits in order to protect the press from long periods of uncertainty. Finally, reply is done not by the press but under the name of the injured party, and therefore does not directly denigrate the reputation and the credibility of the media agency. In short, the challenged law achieves a well-struck balance between the two conflicting interests.

Article 19 (3) submission of the matter to preliminary order processes also does not violate the complainant's right to trial because it is needed for swift remedies to injuries.

The statutes above mentioned do not violate the essential content of freedom of the press or their right to trial.

Against this majority opinion, Justices Han Byong-chae and Lee Shi-yoon dissented, arguing that right to a corrective report does not operate like right to reply, and disposing of it through summary procedures such as preliminary orders, instead of full trials, discriminates against the publishers of periodicals unreasonably, violating the equality before law and procedural basic rights.

C. Aftermath of the Case

This case was assessed positively as constitutional ratification of the need for a speedy mechanism of relief and repair to the injuries caused by the media when the contemporary society witnessed the growing danger of unfair infringement on individuals' privacy and attack on their reputation by the powerful media conglomerates. Theoretically, the case was appraised as a great achievement for clearly stating that the conflicts between basic rights should be resolved by harmonizing competing provisions pursuant to the uniformity of the Constitution; and also for emphasizing the meaning and function of freedom of press as an objective normative order.

After this case, the National Assembly revised the Act (Act. 5145) on December 30,

1995 to reconcile it with the decision, inter alia replacing 'right to a corrective report' with 'right to reply'.