[Law & Story] Injunction to Ban Broadcast of "Kim Keon-hee Phone Recordings"

Yoon Seok-yeol, the presidential candidate of the People Power Party, and his wife Kim Geon-hee are holding a public apology press conference at the party headquarters in Yeouido, Seoul on the 26th of last month. Photo by Moon Ho-nam munonam@

In Choi Seok-jin's Legal Stories, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, behind-the-scenes stories, and untold anecdotes without being constrained by subject or format. Today marks the thirteenth story, discussing the court's partial approval decision on the injunction request to ban the broadcast of recorded phone conversations involving Kim Gun-hee, wife of Yoon Seok-yeol, the People Power Party's presidential candidate.

[Asia Economy, Choi Seok-jin, Legal Affairs Reporter] From 8:20 PM on the 16th, MBC's current affairs program 'Straight' will broadcast recorded phone conversations between Kim Gun-hee, wife of Yoon Seok-yeol, the People Power Party's presidential candidate, and Mr. Lee, affiliated with the YouTube channel 'Seoul's Voice.'

It is known that Mr. Lee recorded a total of 7 hours and 45 minutes of phone conversations with Kim over 53 calls starting from August 2 last year and provided the files to MBC.

Until this day, about 50 days before the presidential election, Kim's only public appearance was a national apology press conference at the end of last year. Therefore, there is strong public interest in what content the recorded conversations might contain.

This broadcast is expected to significantly influence the approval ratings of Lee Jae-myung, the Democratic Party presidential candidate, and Yoon, who have been competing closely for first and second place. Especially, Yoon, who recently reconciled dramatically with Lee Jun-seok, the People Power Party leader, and is recovering his support ratings, may suffer a critical blow.

Court Partially Approves Injunction Request to Ban Broadcast of Three Contents

According to information so far, Kim filed an injunction request against MBC to ban the broadcast of nine items related to the recorded conversations, which had circulated online in the form of rumors.

However, on the 14th, the court dismissed five of these items without further examination, citing MBC's statement that these were not included in the broadcast.

Among the remaining four, the court also dismissed the request to ban broadcasts of remarks related to conservatives and the Me Too movement, as well as the content where Kim asked Mr. Lee to come to Yoon's campaign to help.

The court approved Kim's request to ban broadcasts on the following: ▲remarks made in a somewhat strong tone while expressing dissatisfaction toward media companies or individuals, ▲two other items unrelated to political views, and additionally ▲remarks related to Kim Gun-hee's ongoing investigation.

Kim also requested an indirect enforcement order requiring MBC to pay 100 million KRW per violation if the court's broadcast ban was violated, but the court rejected this. The court reasoned that, based on MBC's attitude during the case records and hearings, it was difficult to conclude that MBC was likely to violate the injunction.

Kim Gun-hee's Side: Violation of Voice Rights and Breach of Broadcasting Review Regulations

During the injunction hearing, Kim's side argued that Mr. Lee is a person filming for the YouTube broadcast 'Seoul's Voice' and cannot be considered a journalist. They claimed the conversation was not conducted in a journalistic manner but was approached as a private conversation to build a friendly relationship.

Therefore, they emphasized that if MBC broadcasts the illegally recorded files without Kim's consent, MBC would also be complicit in illegal activity. They also argued that this constitutes an infringement of the 'voice rights' recognized by the Constitutional Court in 2019.

They further claimed that the broadcast would include content about Kim's private life before marriage, and during the editing process of condensing 7 hours and 45 minutes of recordings into about 40 minutes of broadcast, there is a possibility of distortion of Kim's statements. They stressed that Kim's right to reply is not guaranteed, which could seriously infringe on her honor and personality rights.

Moreover, Kim's side pointed out that the Central Election Commission previously interpreted that editing and broadcasting a recorded file of Lee Jae-myung's brother-in-law's abusive language could constitute 'candidate defamation.' They argued that the illegality of this case is greater because, unlike Lee's recording, which was released by the victim's side, this recording was released by the perpetrator. They claimed that banning this broadcast would be tantamount to condoning violations of the Public Official Election Act.

In the final argument, Kim's side acknowledged that recording by a party to the conversation is lawful under the Communications Privacy Protection Act but cited district court precedents recognizing secret recordings as violations of voice rights. They argued that Mr. Lee approached Kim with political motives, deceived her by pretending to help, induced responses, and recorded the entire process beyond the minimum necessary, making the recording clearly illegal. They also emphasized that broadcasting recordings of private matters without consent violates personality rights as explicitly stated in the Broadcasting Review Regulations.

Article 19(3) of the Broadcasting Review Regulations under the Korea Communications Standards Commission states, "Broadcasts shall not unjustly infringe on an individual's personality rights by recording or filming a specific person's private life without their awareness and broadcasting it without consent."

MBC's Side: Public Interest and Sufficient Opportunity for Rebuttal Provided

On the other hand, MBC emphasized that Kim, as the spouse of a leading presidential candidate, is a public figure who could exert influence close to the president if Yoon is elected.

They noted that various suspicions have surrounded past first ladies, and many unfair acts involving relatives exerting influence have occurred. They highlighted that the report aims to guarantee the public's right to know.

Especially, Kim has attracted much more attention compared to previous presidential candidates' spouses, with millions of related articles, underscoring the need for scrutiny as a first lady candidate.

MBC stated that they verified the authenticity of the recordings provided by Mr. Lee through forensic companies and made several attempts over two weeks to hear Kim's side for rebuttal.

While Kim's side argued that a few text messages alone are insufficient, MBC said most of the main points were conveyed via text, and since it was difficult to include everything in messages, they tried multiple phone calls but failed due to Kim's non-response. They added that they would include Kim's rebuttal as much as time allows in the broadcast and provide additional broadcasts afterward.

Regarding Mr. Lee, whom Kim's side claimed was ambiguously a journalist, MBC argued that 'Seoul's Voice' is registered as an internet newspaper business, and Mr. Lee has authored 121 articles on their website, indicating he is not just a YouTube videographer. They also mentioned that Kim's secretary referred to Mr. Lee as a 'reporter' in KakaoTalk conversations.

MBC further explained that Mr. Lee disclosed his identity as a journalist and intended to report, and Kim's side formed a trusting relationship by thanking him for defending Yoon.

MBC rebutted Kim's side's reference to Lee Jae-myung's brother-in-law's abusive language recording, clarifying that the Central Election Commission's interpretation was that editing and broadcasting only the abusive parts could constitute candidate defamation, not the entire recording. They emphasized that this case aims to convey opinions, not abusive language, and that they plan to broadcast the recordings as close to the original as possible without editing, except for parts that might negatively distort the intent.

MBC argued that election fairness does not mean broadcasting only what candidates want to say but requires voters to verify candidates properly. Since most of Kim's requested bans relate to her views, they stressed these are public matters.

During the hearing, MBC tried to explain the specific content of the report, but Kim's lawyer objected, saying "If you reveal the content, the injunction request loses its meaning," and the court prohibited discussing the broadcast content, so the details were not mentioned in court.

Court Dismisses Other Requests Except Three Contents... "Public Figure, Aligns with Public Interest"

The court first presented two Supreme Court precedents as standards for judging this injunction case.

One is a Supreme Court ruling on the conditions under which broadcast bans are permissible, and the other is a ruling on public figures as a criterion for judging public interest.

In 2004, the Supreme Court ruled that prior restraint on expression is only allowed under strict and clear conditions in line with Article 21(2) of the Constitution, which guarantees freedom of expression and prohibits censorship. Prior restraint on broadcasting should generally not be allowed, but if the content is false, not solely for public interest, and likely to cause serious and irreparable harm to the victim, prior restraint may be exceptionally permitted.

Thus, broadcasts can be banned only if the content is false or the purpose is not solely for public interest and there is a risk of serious harm to the victim.

In 2016, the Supreme Court ruled that whether facts reported by the media concern public interest should be decided by considering the specific content, the scope of the audience, the method of expression, and the degree of damage to reputation, as well as whether the victim is a public figure, such as a public official or politician, who attracts broad public attention, or a figure of limited interest, and whether the facts relate to the victim's public activities or have social significance.

In judging whether the report concerns public interest, whether the victim is a public figure and the degree of public attention they attract are key criteria.

Based on these precedents, the court found that Kim failed to prove the necessity or right to seek a broadcast ban.

The court stated that although Kim claimed Mr. Lee, who opposes Yoon, deliberately approached her, who was mentally vulnerable due to negative media reports, and illegally recorded private conversations without consent, ① the Communications Privacy Protection Act prohibits recording, listening, leaking, or disclosing conversations between others without consent, but this recording was between Kim and Mr. Lee, parties to the conversation, so it does not fall under prohibited 'conversations between others'; ② there is no evidence that Mr. Lee used illegal methods to obtain the recordings; ③ MBC verified the recordings through forensic investigations by public institutions; ④ MBC promised not to broadcast purely private family or spousal content; and ⑤ the Media Arbitration Act states that reports on public interest matters within social norms do not constitute illegality even if personality rights are infringed; thus, the broadcast appears to serve public interest, making Kim's claims difficult to accept.

The court then explained the grounds for considering the broadcast content as related to 'public interest.'

The court said, "Kim, as the spouse of Yoon, a registered preliminary candidate for the 20th presidential election, is a public figure receiving national attention through the media. Her views on social issues or political opinions are matters of public interest contributing to public opinion formation and social debate, and cannot be simply regarded as private."

Furthermore, "MBC stated that the broadcast aims to prevent the possibility of Kim exerting undue political influence if Yoon becomes president. This purpose serves the public interest by guaranteeing the public's right to know and providing voters with information. The social and political views of a presidential candidate's spouse should be known to voters for criticism, monitoring, and voting decisions, aligning with public interest. Even if some privacy or personality rights are infringed, considering the legislative intent of Article 251 of the Public Official Election Act, which tolerates certain defamation for proper voting, the broadcast should be broadly recognized as serving public interest," the court explained the reason for dismissing Kim's request.

The court also found Kim's claims that MBC maliciously edited or distorted her statements or failed to guarantee her right to reply unlikely, noting that ① MBC attempted to contact Kim or her associates for rebuttal since December 29 last year but received no response; ② MBC plans to include rebuttals already claimed by Kim and those requested before the broadcast; and ③ MBC is considering additional broadcasts if rebuttals are insufficient.

Finally, the court rejected Kim's claim that the broadcast should not include extremely private conversations, supportive remarks, or easily mentioned spousal comments, as MBC stated these were not included in the broadcast.

Meanwhile, as mentioned earlier, the court approved Kim's request to ban broadcasts on three parts: ▲remarks related to ongoing investigations, ▲remarks expressing dissatisfaction toward media companies or individuals in a somewhat strong tone, and ▲conversations unrelated to political views.

Regarding the ongoing investigation remarks, the court said, "If Kim is investigated or questioned in the future, her constitutional right to remain silent, guaranteed in criminal procedures, may be infringed."

All suspects or witnesses have the right not to be forced to make self-incriminating statements. If Kim made statements unfavorable to herself during the conversation with Mr. Lee, broadcasting them could violate her fundamental rights.

Regarding the remarks expressing dissatisfaction with media companies, the court noted, "These remarks include somewhat strong expressions toward media companies or individuals who made negative articles or statements about Kim, which do not qualify as political opinions necessary for voters' proper voting."

Lastly, the court said, "Some content appears to be private conversations with acquaintances unrelated to political views, so banning broadcasts of these parts is appropriate," explaining the partial approval.

Kim's Side Announces Criminal and Civil Lawsuits After Broadcast... Opposition Party Likely to Criticize MBC's Bias

The court did not include the list of broadcast-ban requested contents submitted by Kim in the decision document. However, immediately after the decision, the list was circulated online and on social media as an annex, and the People Power Party claimed it was leaked by MBC's lawyer.

It is difficult to predict exactly what and how much MBC will disclose in the 'Straight' broadcast, but it is highly likely that Kim or the People Power Party will take legal action after the broadcast. If MBC broadcasts content prohibited by the court's partial approval, they will naturally challenge it. Even if not, they are expected to file criminal complaints and civil lawsuits for damages over parts of the broadcast.

Kim's lawyer already stated during the injunction hearing on the 14th that "If Mr. Lee recorded to confirm Kim's position, it should have been done officially. Recording with political motives and reporting like this is improper and illegal."

He added, "Such behavior cannot be protected under freedom of the press. If aired, Kim will file criminal charges and claim damages against MBC. However, the damaged reputation cannot be restored afterward," signaling legal action.

Meanwhile, the opposition party expressed concerns about whether MBC, which has shown strong pro-government tendencies under the Moon Jae-in administration, will provide fair coverage.

Yoo Sang-beom, head of the People Power Party's Central Election Committee Legal Support Team, wrote on Facebook the day before, "The sensational topic of 'recorded conversations of a celebrity' inevitably attracts much public attention because it is private conversation. If it were a public conversation, it would have drawn less attention. This intense focus accurately highlights the essence of the case."

He claimed, "This MBC report is political manipulation using broadcasting as a weapon, falsely borrowing the name of 'public interest' to violate constitutionally guaranteed privacy and freedom, constituting human rights violations."

Yoo also criticized MBC's political bias, saying, "On the 12th, when Lee Byung-chul, who first raised the suspicion of Lee Jae-myung's lawyer fee payment, died, MBC reluctantly reported the news at the end of the broadcast without properly mentioning Lee Jae-myung's name, only calling him 'Candidate Lee.' Why couldn't MBC, which claims to care about public interest, even properly mention Lee's name? How low and cowardly has our politics become? It is truly appalling."

Indeed, news of Lee Byung-chul's death was front-page news in some evening newspapers on the 12th and most morning newspapers on the 13th, but MBC reported it near the end of the main news on the 12th, with the anchor mentioning Lee Jae-myung once and the reporter only referring to him as 'Candidate Lee,' avoiding his full name.