Can the Right to Knowledge Be Realized Through Illegal Methods?

A traveler finds a poisonous tree. The tree has beautiful and appetizing fruits. The traveler agonizes whether to eat one or not.

The transcript of eavesdropping by the Agency for National Security Planning, the predecessor of the National Intelligence Service, during the presidential election campaign in 1997, has aroused controversy.

The transcript (fruit) reveals shocking news. Political figures, business leaders, the media, and the prosecution revealed their ugly back-dealings and conspiracy.

The public (hungry traveler) roars. People clamor for the truth. They claim that freedom of expression and the right to knowledge are important.

However, the problem is that the “fruit” came from eavesdropping by a government agency (poisonous tree). Should people eat the fruit and feel full (investigate and punish)? To deal with the issue, it is important which conflicting values should come first.

The Communications Protection Law-

The Communications Protection Law (CPL) not only bans eavesdropping but also prohibits using the results and making them public. Articles Four and 14 stipulate that conversations gathered by wiretapping are not valid in a court or as evidence.

A prosecutor of the Seoul Central District Prosecutors Office said, “The prosecution cannot interrogate a suspect saying, ‘You did bribe this person’ with evidence from wiretapping.” This implies that evidence obtained by illegal means can not be used in investigations.

The Right to Knowledge and Freedom of Speech-

Article 21 of the Constitution stipulates freedom of speech and the press. The Constitutional Court stated in a 1995 ruling that “as part of the freedom of speech and the press, the right to knowledge meaning the right to gather and process evidence should be respected.”

The press and scholars argue that it is impossible to restrict the right to knowledge or punish a violator on the basis of the CPL because the rights of the Constitution come before the law.

Different Values on the Constitution-

The Constitution also guarantees the protection of privacy (Article 17) and the freedom of communication (Article 18).

The eavesdropping with the government agency’s approval violates basic rights. In a 1960 decision, the Federal Supreme Court in Germany ruled that “recording conversations secretly or making them public is equivalent to an act that undermines human sanctity and freedom of speech.”

The main issue here is which should come first.

Most constitution experts believe protection of privacy and freedom of communications are dominant as basic rights. The basic rights are related to the sanctity of human beings. Article 10 of the Constitution surpasses all other considerations as absolute rights.

On the contrary, freedom of speech and the press are relative rights that can be limited at times. Heo Young, a professor of Myongji University, explains in his book “Constitution Studies” that freedom of speech and the press can be restricted when it conflicts with the sanctity of humans and the protection of privacy.

In particular, the right to knowledge should be respected when information was obtained through legitimate ways, but in this case, because it was gathered through illegal methods, freedom of knowledge does apply.

Jeong Jong-sup, a professor of Seoul National University, said, “The right to privacy and freedom of communications comes before the right to knowledge,” and went on to say that “it is worrisome that people violate constitutional rights misled by what the transcript obtained by wiretapping says.”

In the U.S., after the case of Mapp vs. Ohio, in 1961, all evidence obtained by searches and seizures in violation of the Federal Constitution are inadmissible in a criminal trial.

Soo-Hyung Lee sooh@donga.com