Data Protection Law May Shut Down Press or Whistleblowing

The people who initiated the global movement of privacy protection laws did not intend to use these laws to block press reporting or whistleblowing. That’s why even the GDPR (General Data Protection Regulation), which has become the gold standard of the movement, explicitly demands in Article 85 that actual legislations of EU member countries harmonize with “the freedom of expression” and ensure the protection of “processing for journalistic, academic, artistic, or literary purposes.” Moreover, Article 6(1)(e) allows for the processing of information for “tasks carried out in the public interest” without the consent of the data subject.

Consequently, in our country’s privacy protection law, although not perfect, Article 58 stipulates that most provisions of the privacy protection law do not apply to information “collected and used for press reporting.”

However, why is the Presidential Office of Yoon Seok-youl claiming that Kyunghyang Newspaper’s report on the hiring of staff by the Presidential Office is a ‘violation of the privacy protection law’? There is a unique provision in our country’s privacy protection law, Article 59. It states that one shall be punished for “providing [information] to another person without authority,” and this is seen to include ‘press reporting.’ There has even been a legal case where a court (Seoul Western District Court, Dec. 18, 2015, 2015Gohap1144) interpreted it this way.

However, based on the legislative intent of Article 58, it should be interpreted that it already granted press reporting the ‘authority’ required by Article 59. If this is not clear, the law should be amended to rectify it. Otherwise, all press reports naming specific persons carry risk criminal punishment of up to five years in prison, having to scrutinize whether they have ‘authority’ in each case.

General provisions dealing with the ‘provision to a third party’ of personal information in Article 17, unlike the GDPR (Article 6(1)(e)), do not specify the processing of information for ‘tasks carried out in the public interest’ without consent as a basis for processing. To ensure safety — make sure Article 59 is applied against press reporting—- Article 17 also needs to be amended. Especially to protect not just press reporting but also whistleblowing and various public interest disclosures, an amendment to Article 17 is crucial. (Sadly, a bill to this effect proposed last year by legislator Min Byung-duk did not pass.) Without this change, all named whistleblowing and disclosure activities, including press reporting, would risk criminal punishment under Article 59.

Of course, the courts already could consider various factors and interpret the law in such a way that it does not apply to press reporting, whistleblowing, and other information processing in the public interest (as in Seoul Central District Court, Aug. 12, 2016, 2015Gaso6734942). But if reporting and disclosures can only be made based on such legal interpretations, the chilling effect would be considerable.

*You can find the original Korean statement here, at Open Net’s Korean website. Contact us at ma****@op*****.kr for more information.