The Financial Crime Investigation Unit of the Seoul Metropolitan Police Agency raids Hanmi Ilbo on the 3rd. [Photo = Screen capture from Lawyer Park Joo-hyun TV]

The Legal Distinction Between "Unverified" and "False"

The police investigation, based on a search and seizure warrant for Hanmi Ilbo issued by the court at the request of the Seoul Central District Prosecutors' Office, raises the question of whether this can truly be viewed as a simple defamation investigation.

The core issue is not whether a warrant was issued, but rather to what extent compulsory investigation of a media organization is permissible without proof of falsity or an investigation into the facts of the alleged harm.

Furthermore, the aggressive move to name a U.S. citizen journalist as a suspect foreshadows significant repercussions between South Korea and the United States.

If this issue is brushed aside without an answer, the concern becomes not just a specific media outlet, but the very standards governing the relationship between investigations and freedom of expression.

In this case, the prosecution determined that Hanmi Ilbo's articles constituted defamation by way of false information.

However, it is not clear whether sufficient objective counter-evidence supporting the probability of falsity was presented during the warrant request and investigation process.

Criminal intervention cannot be justified solely on the basis that something is "unverified," without a structural explanation of what the specific content deemed false is or what evidence contradicts those claims.

"Unverified" and "false" are not legally identical.

Was There a Preliminary Damage Investigation Regarding Lee Jae-myung and Kim Hyun-ji?

The starting point of a defamation investigation is not annoyance or political controversy, but a rigorous judgment of the constituent elements of the offense.

An independent determination must be made beforehand as to whether the report constitutes malice outside the scope of public interest, beyond simply establishing falsity.

However, it is not confirmed whether such a judgment was sufficiently presented during the process of requesting this warrant.

Deducing intent from results is far from the approach required by defamation law.

An even greater problem is that there was not even a preliminary investigation into the alleged harm suffered by the main victims specified, Lee Jae-myung and Kim Hyun-ji.

Of course, because defamation is not a crime requiring a formal complaint, the lack of victim investigation does not make an investigation itself impossible.

However, the victim's perception and the degree of social damage to their reputation are key elements in determining whether a crime has been committed. Lee Jae-myung is a public figure who recently stated in a meeting with overseas Koreans that "it is fine to criticize the President."

Nevertheless, given that the specific articles or expressions forming the basis for the criminal charges remain unspecified, it remains questionable whether a search and seizure approach—which allows access to a media outlet's materials as a whole—was limited to the necessary scope.

In particular, this search and seizure targeted a media outlet that is critical of the current administration.

Precedents from the Supreme Court and the Constitutional Court

The Supreme Court and the Constitutional Court have consistently required the "principle of minimal infringement" and "last resort" status regarding compulsory investigations of media organizations.

The articles in question contained already public information, and less invasive alternative means, such as ensuring the right to reply or requesting voluntary submission of materials, were available.

If a compulsory investigation—a search and seizure—was chosen immediately without reviewing these options, its necessity and proportionality must be explained more strictly.

The decision to opt for a compulsory investigation on the grounds of fear of evidence destruction, targeting already published articles and materials on servers and platforms, also lacks sufficient explanation.

In a situation where it has not been shown that an investigation would have been impossible through voluntary submission or requests for data, one must ask whether the enhanced judicial review standards required for media-related cases were actually operational.

This is because search and seizure are irreversible measures; even if their illegality is argued after the fact, the reporting process and materials have already been exposed.

The Financial Crime Investigation Unit of the Seoul Metropolitan Police Agency raids Hanmi Ilbo on the 3rd. [Photo = Screen capture from Lawyer Park Joo-hyun TV]

What are the Prosecutor and Court Standards Regarding the Hanmi Ilbo Warrant?

The mere fact that the court issued the warrant does not resolve these doubts.

The essence of this case lies in the court approving an unconstitutional and excessive request by the prosecutor based on standard warrant review criteria.

This is less about active illegality by the court and more about a structural problem where the constitutional standards required for media cases are not sufficiently functioning at either the request or the issuance stages.

Furthermore, this case targets reporting on the sitting President, Lee Jae-myung.

The sitting President is a public figure who exercises the most powerful authority, and at the same time, occupies a position that must endure the broadest range of criticism and scrutiny in a democratic society.

For such reporting, a higher threshold is required for both the determination of falsity and the initiation of an investigation. When those standards are shaken, the very function of the media—to monitor those in power—is placed in jeopardy.

The prosecution cannot substitute the legitimacy of an investigation with the fact that a court issued a warrant.

The burden of proof for falsity lies with the state, and confirming the facts of the damage is the starting point of an investigation.

If this basic principle is not upheld, compulsory investigations will inevitably be perceived as a tool to chill critical reporting.

The questions left behind by the search and seizure of Hanmi Ilbo remain valid.

Is the power of investigation being exercised within the framework of the Constitution, and are the protection standards for freedom of the press actually in effect?

If these questions are not answered, the next search and seizure will be carried out more easily against someone else, with an even lower threshold.

If compulsory investigation powers are mobilized indiscriminately with such a low threshold, interest in this matter will inevitably grow within the international community, not just in the United States.

This is because the Lee Jae-myung administration is effectively admitting that it is being pursued.

Constitutional Court 2010Heon-Ma88, etc.

(Last resort status of media search and seizure; protection of freedom of reporting)

https://www.law.go.kr/precSc.do?tabMenuId=tab20&srchTxt=2010헌마88

Constitutional Court 2012Heon-Ma191

(Unconstitutionality of comprehensive and general seizures)

https://www.law.go.kr/precSc.do?tabMenuId=tab20&srchTxt=2012헌마191

Supreme Court 2007Do3061

(Permissible scope of reporting on criticism and suspicions regarding public figures)

https://www.law.go.kr/precSc.do?tabMenuId=tab20&srchTxt=2007도3061

Supreme Court 2014Do13362

(Burden of proof for falsity in defamation lies with the prosecutor)

https://www.law.go.kr/precSc.do?tabMenuId=tab20&srchTxt=2014도13362

Supreme Court 2016Do10942

(Malicious intent cannot be presumed from results; requires independent proof)

https://www.law.go.kr/precSc.do?tabMenuId=tab20&srchTxt=2016도10942

※ The above cases are the standards established by the Constitutional Court and the Supreme Court regarding search and seizure of media organizations and reporting on public figures.