Reporter Heo Kyum heading to Seongdong Police Station after the preliminary injunction hearing. Captured from TV Chosun screen

“99 Chinese spies were arrested at the Election Training Institute and repatriated to a US military base in Japan.”

This report by Sky Daily in January immediately led to a rebuttal from the National Election Commission and a police investigation, turning the media outlet into a suspect under the frame of 'false reporting' and 'media crime'. However, six months later, the prosecution has closed the case for defamation, the core charge, with 'no charges filed'. This means that even the falsity has not been proven.

Despite this, the police are still continuing their investigation based on the charges of 'obstruction of justice by deceptive means' and 'gaining profits through false communication under the Information and Communications Network Act'. Concerns about political intent and hidden motives are growing regarding the police's persistence with charges that have a low possibility of legal indictment. In particular, given that the reporter Heo Kyum, who wrote the report, is the publisher of Hanmi Ilbo, which has been critical of the current government, some interpret this investigation as a 'targeted investigation' or 'power's attempt to tame the media'.

Prosecution's Conclusion is Effectively Not Guilty

The so-called '99 spy arrest theory' reported by publisher Heo Kyum was first published through Sky Daily in January of this year. The article stated, "The martial law army and the US military, in a joint operation, arrested 99 spies of Chinese nationality at the Election Training Institute in Suwon, Gyeonggi Province, and repatriated them to a US military base in Okinawa."

Subsequently, the National Election Commission immediately issued a rebuttal, stating, "Only National Election Commission staff and external instructors were undergoing training at that location, and there were no foreign nationals." The Election Commission filed a complaint with the police against reporter Heo Kyum on charges of △ defamation under the Information and Communications Network Act, △ defamation by publication, △ obstruction of justice by deceptive means, and △ violation of the basic telecommunications law.

The Cyber Investigation Unit of the Seoul Metropolitan Police Agency applied for an arrest warrant, and the prosecution also requested it. However, the Seoul Central District Court, on May 21, denied the warrant, stating, "There is a significant room for legal dispute, and a substantial amount of evidence has already been collected." Thereafter, the police forwarded reporter Heo Kyum and former CEO Cho Jeong-jin to the prosecution with a recommendation for indictment without detention.

Ultimately, on July 26, the Seoul Central District Prosecutors' Office issued a 'no charges filed' disposition for the two defamation-related charges and decided not to forward the case. This indicates that the report could not be definitively deemed false, and considering the purpose of the report and the circumstances of the interview, it was judged not to be subject to criminal punishment.

Police Continue Investigation… Prosecution Orders Supplementary Investigation

However, the police are still continuing their investigation into the remaining two charges.

Along with the decision not to forward the case, the Seoul Central District Prosecutors' Office ordered supplementary investigations into the charges of △ obstruction of justice by deceptive means and △ gaining profits through false information under Article 74(1)(3) of the Information and Communications Network Act (transmitting information for the purpose of gaining profit through false information).

While the prosecution has not disclosed the specific details of the directive, in such cases, prosecutors often request supplementary investigations into objective circumstances, such as the reporter's intent at the time of the report, the credibility of the cited sources, and whether there was an intent to gain profit for oneself or a third party (including the media outlet) through the article.

In other words, the prosecution has likely requested the police to submit additional materials necessary to prove the charges, given that they have judged that criminal responsibility for the report itself is difficult.

Low Possibility of Indictment Legally

However, the remaining two charges both have strict legal elements.

The crime of 'obstruction of justice by deceptive means' is established when a reporter, knowing the information to be false, causes a public official to err and obstructs their duties. In a situation where the prosecution has not acknowledged the falsity itself, proving intent and obstructive effect is nearly impossible.

Even if numerous complaints were filed with the Election Commission, the crime is not established if there is no evidence that a public official performed an incorrect duty due to the reporter's deception.

Another charge, 'gaining profits through false communication' under the Information and Communications Network Act (Article 74(1)(3)), is only established if false information is transmitted via the information and communications network and oneself or a third party gains 'financial profit'. The police's logic is that Sky Daily gained indirect revenue, such as advertising revenue or increased traffic, from the publication of the article, and the reporter knew this and published the article.

However, it is pointed out that media reports are fundamentally linked to advertising revenue and increased clicks, and interpreting entire media reports as criminal acts of profit-seeking based on this is a dangerous precedent that infringes upon freedom of expression. In fact, no cases could be found where this provision was applied to media reports and resulted in a guilty verdict.

Prolonged Investigation, Political Motives?

Given that the police are prolonging the investigation despite the legally slim possibility of indictment, many suspect the motives behind it.

In particular, given that publisher Heo Kyum is a journalist who has continuously published critical reports on sensitive issues such as the current government's election system, the operation of the National Election Commission, and distrust in its computer systems, some interpret this investigation as an attempt to control the media with political objectives, beyond a simple investigation of the case.

An industry insider criticized, "This case is a prime example of investigative agencies attempting to frame journalists as criminals," adding, "Even the prosecution could not establish the charges, so it is inevitable to question whether the police's continued investigation is due to someone's intentions."

Investigation Beyond the Law?

The case of publisher Heo Kyum is not a mere controversy over false reporting.

The fact that investigative agencies are continuing their investigation with the premise of 'criminal punishment' for a report where neither falsity nor intent could be proven, and the fact that the journalist in question is voicing criticism against power, are intertwined. This is highly likely to become a case that tests the freedom of expression in South Korea, beyond the freedom of the press.

Amidst expert predictions that the remaining charges have a low possibility of indictment, public attention is focused on what judgment the prosecution will make and how long the police investigation will continue.

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