언론의 자유와 명예훼손 고소사건 수사: MBC PD수첩의 광우병 보도사건을 중심으로

초록

Some commentators insist that the DA discontinue the investigation of MBC's broadcast program, Mad Cow Disease. on the ground that the report is an exercise of the freedom of press and does not constitute defamation. The Constitution protects, however, personality right including the right to fame as well as the freedom of press. Therefore the freedom of press does not guarantee absolute immunity of the mass media. Under the present law, a defamer takes civil and criminal liability whereas he/she is exempted from it according to circumstances. It is a matter of legislative policy whether the crime of defamation should be abrogated. The DA has to commence the investigation when the accusation of the victim is brought. It was inevitable for the DA to apprehend the producers of the program with a warrant of arrest because they had refused to appear voluntarily for several months. The compulsory investigation also complied with the principle of proportion as the suspects were released the next day. The labor union members of MBC justified themselves with the right of silence about the identity of news sources when they obstructed the execution of the warrant for the search of MBC main building. But they cannot be justified with it because the protection of news sources do not apply to the defense of the journalists themselves in criminal procedure. Statements of pure opinion is not defamatory but statements of fact or statement of opinion which assumes underlying facts may be defamatory. Public officials also possess the right to fame. Therefore criticisms on government policies suggesting the incompetence or immorality of public officials may be defamatory. The Court exempts journalists from liability if the report is true or so far as they reasonably believed it was true even though it proved to be false. Therefore the DA should investigate whether the journalists conducted proper and sufficient research to confirm the truth of information. The Court partly accepts the doctrine of public figure and does not consider that factor itself as the privilege of exemption from liability. MBC should have re-examined the Mad Cow Disease report and cooperated with the DA's investigation. In the future a proceeding is necessary for mass media to appeal from the process of search warrant. The DA should reconsider the search of MBC main building, for it seems unnecessary for the indictment of the suspects.

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