기자의 취재원 보호와 증언거부권

A Study on Protection of Reporters News-gathering and Their Right to Excuse Themselves from Testifying

According to Article 315 of Korean Civil Procedure Act, a witness may refuse to testify when he or she is examined on matters falling under his or her technical or professional secrets. In this regard, one of the key issues is whether a reporter s privilege falls under the scope of professional secrets. The reporter s privilege raises different questions than other professional secrets. The professional secrets claimed by attorneys, medical doctors, psychotherapists, and clergy members are designed to protect the client s or patient s private statements from disclosure. With the reporter s privilege, however, it is the reporter who is seeking protection for the right to publish or broadcast the source s information while keeping the source s identity secret. Although confidentiality may also protect the source, the privilege s primary goal is to protect the reporter s freedom of speech to publish the news without government interference. There are divided approaches in Korea as to whether the reporter s privilege is absolute. I think the reporter s privilege is not absolute. Hence, a court should take into account several factors by a balancing test in order for it to allow the reporter s privilege. Those factors include public interest in keeping the news sources identity secret, the existence of alternative evidence, burden of proof, and the importance of secrecy of the news sources identity. The balancing test will support constitutional value of the freedom of speech. At the outset, this Article will explore the overview, history and legal sources of the reporter s privilege. Second, the Article will discuss whom the reporter s privilege protects and what the privilege protects. Third, the Article will explain how to apply the privilege in America and Japan. Finally, the Article will propose whom the reporter s privilege protects, what the privilege protects, and how to apply the privilege in Korea.