In order to establish the crime of defamation by publication under Article 309(2) of the Criminal Code, false statement of facts must be made.

At this time, a statement of fact means a concept substituted by an expression of opinion, the content of which is a value judgment or evaluation, that means a report or statement on the past or specific facts that can be proved by evidence, and, in distinguishing between what expression is a statement of fact or an expression of opinion, it shall be determined in consideration of the overall circumstances, such as the ordinary meaning and usage of language, feasibility of proof, context in which the expression at issue was used, social situation in which the expression was used, etc.

(see, e.g., Supreme Court Decisions 2010Do17237, Sept. 2, 201; 2012Do5756, Oct. 25, 2012). Meanwhile, the alleged facts ought to be so that they may infringe on a specific person’s social value or evaluation.

(see, e.g., Supreme Court Decisions 2004Do4573, Jun. 15, 2007; 201Do6904, Aug. 18, 2011). Moreover, in cases where an essential part of the alleged fact is consistent with objective facts in light of the overall purport of the alleged fact, the issue of whether the alleged fact is false has a little difference from the objective fact or somewhat exaggerated expression.

Even if it is not a false fact, it cannot be viewed as false fact.

(See Supreme Court Decision 9Do4757 delivered on February 25, 2000, Supreme Court Decision 2007Do1220 delivered on October 9, 2008, etc.). The lower court, based on its stated reasoning, does not constitute a mere expression of opinion or evaluation, etc., rather than a statement of fact, or do so to the extent that the victim’s social value or evaluation is likely to be infringed. The lower court reversed the first instance judgment convicting the Defendants.