아동학대행위자의 식별정보 보도금지 조항의 문제점과 개정 방향 - 헌법재판소 2022. 10. 27. 선고 2021헌가4 결정에 대한 검토를 겸하여 -

Abstract

When criminal cases are reported, the “right to the personality of the subject of the report” and the “freedom of the press and the people’s right to know” always conflict, and it is difficult to establish clear standards that can harmoniously guarantee the two interests. Because of the nature of reporting criminal cases, if the identifying information of a suspect is known through the media during the investigation stage, there would be a substantially large negative ripple effect. As such, in principle, journalists should convey that information using pseudonyms or mosaics. However, if superior public interest can be obtained through reporting and there is no possibility of secondary damage to the victims because of reporting, the relative superiority of the freedom of the press and the right to know should be recognized. Therefore, there must be an area where such reporting is permissible through the balance of competing interests. From this perspective, it is somewhat regrettable that the Constitutional Court, during case 2021Hun-Ka4, declared that the challenged provision is constitutional, focusing only on the provision’s legislative purpose of preventing secondary damage to child victims without careful consideration of the possibility of actual damage to the child victim and their will, the child abusers right to personality, and the possibility of balancing competing interests in each situation. Thus, exceptional requirements for reporting the identifying information of child abusers should be stipulated in the challenged provision. This scenario is a case when there is a superior public interest, and simultaneously, there is no concern that the child victim’s identity will be disclosed or the child victim will agree to the reporting. Furthermore, preparing a procedural device so that a third party (Press Arbitration Committee or the judiciary), not a journalist, can objectively review the existence of the above requirements before reporting is necessary.