"We share the same sentiment that this should never happen again." On January 11, director Bong Joon Ho and other prominent artists held a press conference and called for a probe into actor Lee Sun Kyun’s death. Lee had been under intense investigation for alleged drug use and died in December 2023 in an apparent suicide. He was questioned for a grueling 19 hours, a fact which was highlighted by the press. Article 126 penalizes the disclosure of information related to suspected crimes, but it has long been criticized by artists, as its effectiveness in practice has proven to be questionable. This has sparked a debate surrounding the provision.

South Korea’s Article 126 is a legal provision aimed to penalize the disclosure of information related to suspected crimes. However, over time, this law has lost its effectiveness. The voices of criticism by artists for covering unsubstantiated claims surrounding Lee’s criminal charges have brought attention to the pressing issue of the “legal vegetable state,” in which accusations based on suspicion seem to lack substantive legal effect. Consequently, a heated debate has ignited, revolving around whether to reinforce or abolish Article 126. 

The Law Becomes Powerless

The act of releasing facts of suspected crime was established as a criminal offense in 1953 and is still in effect today. The foundational rationale behind the enactment of Article 126 is its alignment with the presumption of innocence. This legal provision recognizes that the public disclosure of facts related to suspected crimes undermines the fundamental principle that every individual accused of a crime is deemed innocent until proven guilty. By compromising the right of the accused to a fair trial, such disclosure poses a substantial risk of subjecting the accused to unfair public judgment and potentially damaging consequences.

Despite its importance, the law has failed to secure a conviction in court over the past 70 years. The ineffectiveness of Article 126 became a prominent issue, particularly in cases involving public figures. After the former President Roh Moo Hyun's death during his investigation, the Ministry of Justice enacted the Investigation and Public Information Rules for Human Rights Protection. However, the bill failed to become a panacea for the problem. According to the data provided by the Korean Institute of Criminology and Justice (KICJ), from 2008 to 2018, there were 347 cases of accusations, but none have been prosecuted.

Challenges Surrounding the Problem

In an interview conducted with The Granite Tower (GT), Professor Park Ah Ran (Media and Communication), who specializes in media, law, and journalism ethics, stated primary reasons that can explain the waning normative influence of the law and the lack of progress on this issue. First, the law targets prosecutors and the police. Article 126 specifies that not the press, but rather individuals, such as the police or prosecutors performing investigative duties are the subjects of punishment. Because their profession is to direct and conduct investigations, they cannot be favorably disposed towards laws that penalize themselves, making it unlikely for them to prosecute themselves according to the law.

Secondly, there are too many exceptions in the Investigation and Public Information Rules for Human Rights Protection. The injunction has six exceptions in total, such as when the press requests for disclosure due to an event being important enough to require notification to the public. Professor Park noted, “While the principle is prohibition, the broad range of exceptions grants investigative agencies the discretion to disclose information.” The practice of commercial journalism also bears responsibility. The press has prioritized reporting the news quickly because of the fierce competition for exclusive coverage. The tendency to prioritize speed over accuracy has provoked side effects, like the lack of consideration for not only the potential social impact, and also the ethical and legal legitimacy of news reporting.

Possibility of Improvements

Following the death of actor Lee, there has been a growing call for societal discussions on countermeasures to the problem. According to one Kyunghyang Shinmun report, legal experts suggest that strict criteria for the exceptions to the law should be applied, to strike a balance between securing the personal rights of the suspect and the public’s right to know. Clarifying the vague definition of “suspected facts” and the scope of “publication” is necessary to restore the regulatory power of Article 126. Professor Park stressed that in line with legal amendments, the press should make concerted efforts for selfregulation in the coverage of criminal allegations.

According to the 2000 case of announcer Baek Ji Yeon suing Sportstoday for violating her privacy, the Supreme Court has made clear that publication based solely on the public’s curiosity is strictly prohibited. Among what the public wants to know, there are subjects worthy of public interest and those driven by pure curiosity. From Professor Park’s perspective, KBS’s report was problematic, as it covered private conversations of actor Lee, which were not legitimate matters of public interest. Matters driven by mere public curiosity should be handled cautiously, to avoid the infringement upon the rights of public figures facing accusation. Moreover, Professor Park stated that the media must shift from the current allegation-focused coverage to trial-focused coverage, as can be seen in foreign media. It is required that the press refrains from relying on information provided by investigative agencies and disclosing allegations before the verdict is confirmed.

The prevailing issue underscores a fundamental challenge at the nexus of the public’s right to know and the individual’s personal rights. It also serves as an occasion to reflect the widespread yet controversial practice of the press and investigative agencies. Collaborative efforts by the press, legal entities, and investigative agencies to promote ethics, while also safeguarding and harmonizing the diverse legal rights involved in the issue, are constructive steps toward finding a solution for society. To prevent the nullification of the law from resulting in the paralysis of social discourse, continual efforts and active engagement remain imperative.