Seoul Metropolitan Police Agency [Photo=Yonhap News]

Searches and seizures of media outlets are no longer an unfamiliar sight. However, the more this scene repeats, the more we are faced with an unavoidable question. 

What is the purpose of these searches and seizures, and to what extent should they be permitted?

The core of the recent controversy surrounding the search and seizure of the Hankyoreh newspaper is neither the truthfulness of its articles nor its assessment of specific individuals. The issue lies much further back. 

It concerns whether the search and seizure of a media outlet in a defamation investigation went through proper procedural judgment, and whether that judgment met the standards required by the Constitution.

Defamation Investigations: What Constitutes Due Process?

We are not questioning the legal act of search and seizure itself. Investigations may be necessary, and laws must be enforced. However, the question of whether the procedures leading up to the execution of these legal acts were sufficiently rigorous is an entirely different matter. 

Especially in defamation cases, which are directly linked to freedom of expression, searches and seizures of media outlets carry a meaning beyond that of a mere investigative technique.

Defamation is a classic crime of expression. 

It is established only when all core elements—falsity, intent, and damage to social reputation—are met. 

These elements are not mere decorations to be assessed retroactively; they are the starting point for determining whether coercive investigation is permissible. 

Nevertheless, if searches and seizures of media outlets become possible based solely on the existence of expression, without concrete evidence for these elements, it leads to the dangerous inversion of "coercive investigation first, element verification later." 

The problem is not about the guilt or innocence of individual cases, but rather whether "procedural safeguards were engaged" in the stage preceding that determination.

When Punitive Sanctions Are Brought Forward

This question becomes even more significant due to the soon-to-be-implemented amendment to the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. 

The amendment introduces punitive damages, predicated on intent or gross negligence. While it takes the form of civil litigation, its effect is punitive. 

If this system is combined with current investigative practices, the initiation of an investigation and the execution of a search and seizure could immediately lead to enormous civil risks. Verification is pushed back, while the power of sanctions is brought forward. 

The consequence is clear: an environment where not reporting becomes the most rational choice.

At this point, the case of the United States serves as an important point of comparison. 

In the US, defamation is in principle a civil matter, and criminal investigations or searches and seizures of media outlets based on media reporting are virtually inconceivable. 

The Privacy Protection Act of 1980, enacted in 1980, generally prohibits searches and seizures of journalists' work product and editorial materials, allowing only for subpoenas. 

This is not because the press is more ethical, but because the recognition that state intervention at the investigative stage itself can chill freedom of expression has been institutionalized. 

In fact, instances of searches and seizures being executed against media outlets for defamation are rarely found in US case law and practice.

The search and seizure executed this time may seem like an isolated incident concerning only the Hankyoreh newspaper for now. 

However, a system with lowered procedural thresholds does not remain confined to a specific media outlet. Whether it's a national daily, a regional newspaper, a large media organization, or a one-person media outlet, any entity that asks uncomfortable questions of power enters the same danger zone the moment it does so. 

The issue is not the content of the reporting but the standards of procedure. As these standards become blurred, the media risks becoming not a watchdog, but merely a loudspeaker relaying information devoid of risk.

The Beginning of the Freedom Not to Speak

This is not censorship in the traditional sense. There is no order to delete articles, nor prior censorship. 

The freedom to speak is formally guaranteed. However, the moment the cost of speaking exceeds the limits of individuals and organizations, silence is disguised as a voluntary choice. 

This is the point where the chilling effect, which the Constitution has most guarded against, becomes institutionally entrenched. 

If this state persists, democracy will lose its function while maintaining its outward appearance. Discussions will disappear, and citizens will lose the basis for judgment.

The question we are posing is simple. 

We are not saying that investigations should not be conducted. We are saying that in a society where enhanced sanctions are planned, we must now clarify the procedural standards under which coercive investigations targeting the media should operate. 

A society where the right to speak remains, but speaking becomes the most rational choice not to speak, is not a normal state of democracy.

The reason we are pursuing an appeal against the search and seizure of the Hankyoreh newspaper, executed on February 3rd, is precisely here. 

This is an attempt to go beyond the interests of an individual media outlet and to clarify under what procedural limits and standards coercive investigations targeting media organizations in defamation cases should be controlled. 

If we fail to establish these standards now, the media will inevitably be relegated from being entities that oversee power to a role that only delivers risk-free information. 

A search and seizure may be legal. However, the question of whether its procedures are constitutional must be answered at this juncture. This is why there is an urgent need for social consensus and public discourse on this question.