2014Guhap64940 Request for the cancellation of disciplinary action for broadcasting deliberation

A Stock Company

Korea Communications Commission

December 4, 2014

February 5, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s measure of sanctions against the Plaintiff on May 12, 2014 (Disciplinary and Warning Measures against Persons related to the B Program) and the measure of ordering the Plaintiff to broadcast the notice that the Plaintiff was subject to the above sanctions by the Defendant.

1. Details of the disposition;

A. The Plaintiff broadcasted C’B’s program (i.e., broadcast from 17:35 to 20:00 a week, hereinafter “instant program”) as shown in the separate sheet between 17:35 to 18:55, and approximately 19:9 seconds from 17:35 to 19:5 (hereinafter “instant broadcast”).

B. On May 12, 2014, the Defendant ordered the Plaintiff to take disciplinary action and warning against the person related to the instant program in accordance with Article 100(1)3, 4, and (4) of the former Broadcasting Act (amended by Act No. 12677, May 28, 2014; hereinafter “the Broadcasting Act”) and Articles 9(2), 11, and 14 of the Regulations on Broadcasting Deliberation (hereinafter “Deliberation Rules”) on the same grounds as the following [Grounds for Disposition], and ordered the Plaintiff to take such disciplinary action and warning pursuant to Article 10(4) of the Broadcasting Act (hereinafter “instant disposition”).

[Grounds for Disposition]

As a result of the first instance trial of violation of the National Security Act that could affect the result of the trial during the period of the trial, it is judged that it might affect the result of the trial, and that it would be in violation of Article 11 of the Review Regulations, because it might affect the outcome of the trial by contributing only the parties to the defendant and his defense counsel, and giving them an opportunity to actively defend their positions in the process of the second instance trial due to the appeal by the prosecution.With respect to the case which is called "D's fairness and balance" and is in an interest in society, there is no person who has contributed to the prosecution or the National Intelligence Service, it is recognized that the content of the defendant's unilateral assertion is limited to the broadcast in the situation where there is no person who has contributed to the National Assembly or the National Intelligence Service, and that it is recognized that the proceedings have broadcasted the contents of the interview in the direction favorable to the contributors, and that it did not reflect the opinions of the parties concerned in the diverse issues or conflicts with each other, and that it did not freely receive violence and balance from the National Intelligence Service or the National Intelligence Center's Opinion.

As there is a concern for confusion, it is judged that Article 14 of the Review Regulations is in violation of the Review Regulations. The plaintiff is dissatisfied with the instant disposition and filed an application for reexamination to the defendant on May 15, 2014, but was dismissed on August 8, 2014, the plaintiff appealed and filed the instant lawsuit on August 12, 2014. [The grounds for recognition: the fact that there is no dispute, the entry of the evidence Nos. 1 through 3, the evidence No. 2, the result of the verification by this court, the purport of the whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

(i) the existence of the reasons for the measure

A) Impartiality and balance

① The program operator of this case did not go through an interview in favor of only E, such as intensively duplicating from the position of the prosecutor’s office or the National Intelligence Service on the suspicion applied to E by the prosecutor’s office to E, and the background leading to the interview from the standpoint of the prosecutor’s office or the National Intelligence Service. In particular, E initially went into North Korea in around 2004 without disclosing that he was his Chinese nationality, and she went to the relevant North Korea in 2006. However, in 2006, she responded to this case’s broadcast hours (19 minutes 9 minutes first), she took nine minutes close to the half of the broadcast hours of this case (19 minutes 99 second) and responded to this case’s active question, despite having been the viewer’s understanding of the Chinese nationality (for the benefit of facilitating employment, etc.).

② In addition, before and after the instant broadcast, a broadcast that reflects both the position of the prosecutor and the position of the prosecutor through the instant program or the Plaintiff’s other program, and, in particular, the FF broadcast contributed an attorney-at-law who defends the position of the prosecutor in the position of the prosecutor in response to 16 minutes and 36 minutes in the instant program, and made it necessary to defend the position of the prosecutor.

③ In light of the above circumstances and Article 21(1) of the Constitution guarantee the freedom of the press and the freedom of the press, which includes the freedom of the broadcast, and the freedom of the broadcast includes the freedom of the broadcast contents. The program of this case is permitted to view only the viewers who installed paid cable TV, and the viewing rate is considerably lower than the terrestrial broadcasting company, and the purpose of organizing news in the general programming channel itself is to deliver to the people a more in-depth contents beyond the terrestrial broadcasting company, and to maximize the function of the media as a government supervisor by including the criticism in the case where the news program of the general programming channel reports on government activities, it cannot be seen that the standard of fairness and balance should be mitigated in determining the illegality or legitimacy of the disposition of this case, and therefore, the broadcast of this case has lost fairness and balance.

B) From the instant broadcast, the expression “E only made a false confession due to the suspicion of the National Intelligence Service,” and the expression “the evidence of the E’s statement was excluded on the ground of suspicion in the first instance trial.” Therefore, it should be deemed that there was no fear of confusion among viewers by broadcasting as if there was a suspicion of suspicion as to whether there was a suspicion of suspicion on E’s female life. Therefore, it cannot be deemed that the instant broadcast lost objectivity.

C) While a violation of the provisions prohibiting broadcast, which could affect the outcome of a trial during the pending trial, was pending in the appellate court on the suspicion of violation of the National Security Act by E at the time of the instant broadcast, the appellate court had already rendered a judgment of innocence in the first instance on April 25, 2014, and the appellate court also rendered a judgment of innocence (Dismissal of the Prosecutor’s Appeal) on the charge of violation of the National Security Act by E on April 25, 2014. The content of the statement of E and its defense counsel in the instant broadcast is nothing more than simply repeating the contents asserted in the appellate court, but it was never a statement to the effect that the judgment of the first instance was justifiable or partly contain unfair contents. As to whether to manipulate evidence by the National Intelligence Service, it cannot be deemed that the broadcast of this case was broadcast by the media already reported by other media, and thus, it could have affected the outcome of the trial.

D) A deviation from or abuse of discretionary power;

Considering that the Plaintiff’s broadcasting, which reflects the prosecutor’s position before and after the instant broadcast, the instant broadcast only delivered the position of the E himself, and that there was little concern for viewers to confuse the content of the instant broadcast with a fact, and that there was a judgment of innocence in the first instance court on suspicion of violating the National Security Act at the time of the instant broadcast, and the appellate court also rendered judgment, and that the broadcast content of the instant broadcast is nothing more than simply repeating the content alleged in the criminal procedure, the instant disposition is too unreasonable, and thus, there was an error of deviation from and abuse of discretionary power.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Determination of the fairness, balance and objectivity of broadcasting

A) Article 21(1) and (2) of the Constitution of the Republic of Korea guarantees the fairness and balance of broadcasting, and Article 21(1) and (2) of the Constitution of the Republic of Korea guarantees the freedom of speech and press, which includes the freedom of broadcasting. The freedom of broadcasting has the characteristics as a subjective right of freedom, as well as is a basis for the existence and development of democracy by enabling the exchange of diverse information and opinions. In addition, citizens have the right to know as a right to collect information for government participation. As social structure becomes complicated and the increase in government activities, the media plays a role to guarantee substantial

In particular, a broadcast, like a newspaper, is a medium participating in the formation of public opinion, but its technical and economic limitations are still not enough to completely overcome the limitedness of the passage of information circulation, which regulates the distribution of information by a small number of companies with monopolying the media and controlling the distribution of information. Moreover, since any person can easily access a broadcast by means of voice and image, a strong appeal is possible, depending on the case where it is possible to popular manipulation, and a broadcast is likely to exert a strong social influence by increasing the social dependence on the broadcast, the necessity of regulation to guarantee the function of the broadcast is higher than that of the print media, such as a newspaper (see Constitutional Court Decision 2002Hun-Ba49, Dec. 18, 2003).

Accordingly, Article 6(1) of the Broadcasting Act requires fairness and objectivity of a broadcast report, and Articles 32 and 33(1) of the Broadcasting Act provides that “A broadcast shall maintain fairness and balance and reflect the opinions of the parties concerned in a balanced manner when dealing with social issues or conflicts of interest.” Article 9(2) of the Review Regulations provides that “A broadcast shall be dealt with in a correct and objective manner, and it shall not cause confusion to viewers by broadcasting as it is an ambiguous fact.” In light of the aforementioned provisions, the fairness, balance and objectivity of a broadcast shall be determined by the Korea Communications Standards Commission, and the freedom of broadcast and the need for regulation on it, etc., the impartiality and balance of a broadcast refers to not merely a quantitative balance but also an objective balance between social issues or conflicts of interests.”

B) Whether the broadcast of this case violates the balance of fairness

In light of the legal provisions and legal principles as seen earlier, the broadcast of this case is deemed to be in violation of the fairness and balance as stipulated under Article 9(2) of the Review Regulations, in view of the following circumstances that can be acknowledged by adding up the details of the above disposition and the grounds for certification as well as the purport of the entire pleadings.

① In determining the fairness and balance of broadcasting, as seen earlier, both quantitative fairness, balance and qualitative balance may be considered.

First, the broadcast of this case seems to have significantly lost the quantitative fairness and balance by unilaterally broadcasting only about 19 minutes of the position of E and its counsel without excluding the opposing parties. In other words, the broadcast of this case was broadcast last 6 subjects of the Ger’s program. After explaining the situation to the viewers about 1 minute in the first part of the broadcast of this case, the broadcast was developed in the form of conversation between the proceeding and E or between the proceeding and their defense counsel, and did not make any attempt to hear the opposite party or the opposite party, or at least by telephone communications. In addition, it should be deemed that the broadcast of this case was continuously transmitted only to the viewers unilaterally, and thus, the qualitative fairness and balance has been lost. The Plaintiff did not appear to have developed the broadcast in a way favorable to the Eer’s defense counsel by focusing on various questions about the program of this case, and it could not be seen that it did not have been made in a way favorable to the plaintiff’s assertion that it did not have been made in the way of Korean nationality, but it could be seen that it did not have been easy for the opposing party to answer.

② The Plaintiff asserts to the effect that the broadcast program of this case does not lose balance because it reflects both the broadcast program of this case and the Plaintiff’s position to the prosecution through the broadcast program of this case or the Plaintiff’s other program. However, the instant broadcast program is not related to the entire broadcast program of the Plaintiff, including the instant broadcast program, and it cannot be deemed that the instant broadcast is fair and balanced, even if the Plaintiff provided an opinion to the contrary in addition to the instant broadcast program, and even if the broadcast program of this case provides an opinion to the contrary in the other date in the form of the broadcast program, the instant broadcast is not deemed to have been operated for 20 days or more, and it cannot be concluded that the viewers of the broadcast of this case are identical to those of the instant broadcast program of this case, and thus, it cannot be seen that the increase of the broadcast program of this case constitutes an independent broadcast program of this case for the purpose of promoting fairness and balance between the Plaintiff’s broadcast program and the viewers of this case’s broadcast program.

Therefore, the logic that (i) the instant program is a “broadcast for news reports exempt from self-review”; (ii) the broadcast program of a broadcasting business operator engaged in general programming under each of the above statutes does not have any provision to the effect that the review of fairness and balance can be mitigated; (ii) even if only the corrective operator equipped with paid cable TV equipment can view the instant program, it is the reality that the current cable TV viewing equipment has been widely supplied; and (iv) the view that the viewing rate is lower than the case where the viewing rate is higher than the case where the viewing rate is higher.

Moreover, the Plaintiff’s assertion to the effect that the standard of review on the fairness and balance should be mitigated on the ground that the instant program is a news program in general programming channels, in consideration of the fact that real-time viewing of the instant program can be viewed via the Internet and that it seems possible to play on the Plaintiff’s Internet homepage even at the present time that the instant broadcast is possible on the Plaintiff’s Internet homepage.

C) Whether the broadcast of this case violates objectivity

A objectivity refers to the nature of inconvenience through the separation of the subject and objects of the report, but social issues are not objective entities that exist separately from the monitor, such as natural phenomena, so it is not always possible to take a third-party neutrality. Therefore, objectivity in news reports can be understood as a report based on objective facts, i.e., that it does not distort facts, and that it accurately reports the case or objects subject to report.

In this case, according to the above facts and evidence, the prosecutor's office asked E's counsel (E)'s first birth in North Korea after having been indicted for more than the list of North Korean defectors, and then the first instance court's decision of innocence ? It is necessary to judge E's counsel's first birth in the broadcast of this case's "(E)" and then E's counsel asked about how to change the case? It is true that it was a witness's first birth and violence and violence, which cannot be present as human beings, and that there was a lot of statements from the appellate court's ruling that it was hard to understand the fact that the investigator's first violence and intimidation was not reported to the court (E's first birth in North Korea) as well as the second instance court's second instance's opinion that it was hard to understand that it was a witness's second instance court's second instance's investigation as well as the second instance court's opinion that it was distorted by violence and intimidation (the second instance court's second instance court's ruling.).

Therefore, since the broadcast of this case was lost objectivity in this point, the plaintiff's assertion on this part cannot be accepted.

2) Determination as to a violation of the broadcast prohibition provision that may affect the result of the trial during the trial.

Article 11 of the Review Regulations provides that "a broadcast shall not broadcast any content that may affect the outcome of a trial when dealing with a case in which trial is pending, and in-depth coverage related thereto shall not be prejudicial to the public interest." With respect to other matters, the broadcast itself is strictly banned with respect to "content that may affect the outcome of a trial" compared to the demand for balance and objectivity of fairness, because it is directly disseminated through voice and image at the same time, a broadcast has a strong appeal, and the broadcast has a strong social impact on the society by increasing social dependence compared to the past. Therefore, in a case in which trial is pending, where a broadcast is broadcast in the direction of combining with the opinions of many viewers, it is interpreted that the broadcast is likely to affect the progress of a trial currently being conducted and its outcome, restrict the party's right to fair trial, restrict the party's right to a fair trial, and even if the contents of the broadcast are related to fairness and balance.

In addition to the aforementioned facts and evidence, E was acquitted of violation of the National Security Act at the Seoul Central District Court on August 22, 2013 (2013Gohap186) prior to the instant broadcast, and was convicted of violation of the Act on the Protection and Settlement Support of Residents escaping from North Korea and the Passport Act. At the time of the instant broadcast, the broadcast of this case was in progress at the Seoul High Court (Seoul High Court 2013Do2728). The broadcast of this case was in progress at the above appellate court’s trial. As seen earlier, the broadcast of this case was in progress at the above appellate court’s trial, and discussions on the legitimacy and probative value of evidence granting the admissibility of evidence directly with respect to the evidence to be judged at the appellate court’s judgment. In particular, it should be viewed that the broadcast of this case had an impact on fairness and balance as seen earlier, even if it had been combined with the broadcast of this case’s broadcast of this case’s broadcast of this case’s broadcast of this case’s broadcast of this case’s concerns.

Therefore, we cannot accept this part of the plaintiff's assertion.

(iii) deviation from and abuse of discretionary power;

Whether a punitive administrative disposition deviates from or abused the scope of discretionary power under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the violation, which is the reason for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 200

In addition to the following circumstances revealed by the facts and evidence revealed earlier, the validity and probative value of evidence of the methods of evidence to be judged by the appellate court on E after the next time. Nevertheless, in the content and composition of the broadcast, the measure of this case did not select the "Correction, Revision or Suspension of the relevant broadcast program or the relevant broadcast advertisement", which is the most severe sanction under the Broadcasting Act, and it would be more desirable for the media to maintain the fairness, balance and objectivity of the media to obtain trust from the public in order to guarantee the freedom of speech, and in this respect, it would be more desirable for the media to obtain trust from the public. In view of the above, it is desirable that a broadcast, which directly appears in the society where one party is present and makes it possible to make a statement on matters of public interest which are currently being tried like the broadcast of this case, should be considered in the future. Accordingly, even if the Plaintiff suffers disadvantages due to the disposition of this case, it would be possible to accept this part of the disposition within the scope of public interest.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Kim Jong-sik

Judges Cho Young-chul

Judges Lee Jin-jin

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.