2. B

[Judgment of the court below]

Attorney Park Jae-hwan, Attorney Hah-hee, Hak-hee

2. D organization;

3. E.

Defendant LLC Law Firm LLC (LLC)

Attorney Lee Jae-kin

1. As to the defamation part against the plaintiffs

A. Based on its stated reasoning, the lower court determined that, on March 26, 2013, the Defendants expressed the same writing as the indicated in the judgment on the diskettes, banners, and news report materials, among which the Plaintiffs asserted, tort liability due to defamation was established against the Plaintiffs, and the illegality was not denied.

B. Supreme Court en banc Decision 2014Da61654 Decided October 30, 2018 ruled that the criteria for recognizing tort liability for defamation by political expressive act were as follows.

In a case involving tort liability due to political expression, defamation and insult should be dealt with separately, and the recognition of liability depending on the same need to wide guarantee of freedom of expression in relation to political debate or expression of opinion. To recognize the liability of defamation due to expressive act, it is recognized that reputation has been damaged by expressing facts. In determining whether an expressive act constitutes defamation, not only the expression used but also the other party and the other party should be considered.

The freedom of expression, in particular, freedom of expression of public concern, should be guaranteed to the maximum as an important constitutional right. However, given that an individual’s private legal interest should be protected, when two legal interests conflict between the guarantee of freedom of expression and the protection of personal rights, the scope and method of regulation should be determined by weighing the value obtained from the freedom of expression in specific cases and the value achieved by the protection of personal rights.

An expression of critical opinion against another person cannot be deemed unlawful unless there exist extremely exceptional circumstances. However, in a case where the form and content of an expressive act falls under personal attack that is insulting and definite, or infringes on personal rights by making a public announcement that distorted facts going beyond a certain degree of exaggeration regarding another person’s personal affairs, it may constitute tort as exceeding the bounds of expression of opinion.

In the process of political ideological debate, it would be an outcome that excessively limits the freedom of expression to prohibit and impose legal responsibilities on the parts that can be seen as being merely an ephetorological exaggeration or a lusical expression that can be ordinarily seen as being in the process of political ideological debate.

C. Of the expressive acts that recognized the establishment of defamation against the Plaintiffs, it is not reasonable to regard Plaintiff B as a statement of fact for all the expressive acts (hereinafter “the instant expressive act”) that include the Plaintiff B as “the heart of pro-North Korea”, “Plaintiff A trade union under the control of pro-North Korea (hereinafter “A trade union”), “North Korea propaganda inciting North Korea”, “pro-North Korea teaching material”, and “the role of Plaintiff A trade union in the South-North Korea liaison Department of the North Korean labor party beyond the spirit of pro-North Korea,” and there is room to view the meaning of the instant expressive act as an expression of opinion within the scope of the freedom of expression guaranteed by the Constitution, not an expression of fact, in a case where the meaning of the instant expressive act is objectively determined.

Therefore, if the court below deliberated and judged whether the instant expressive act was a factual statement and recognized as a factual statement, it further held that the Defendants believe that the instant expressive act was true.

It is necessary to determine whether there is a reasonable reason.

Nevertheless, the lower court determined that the entire part of the Defendants’ expressive act, including the instant expressive act, constituted defamation by publicly alleging false facts, and that illegality is not removed. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of tort liability by defamation, thereby adversely affecting the conclusion of the judgment.

D. However, based on its stated reasoning with respect to the remaining portion of the expressive act other than the part containing the instant expressive act, the lower court was justifiable in light of the relevant legal principles and records to determine that tort liability due to defamation against the Plaintiffs is established on the grounds that there is no reasonable ground to believe that the Defendants made a false representation of facts against the Plaintiffs and that there is no reasonable ground to believe that such act is true. In so doing, the lower court did not err by misapprehending the legal doctrine on the standard of determining the authenticity

2. As to the infringement on Plaintiff A’s personality rights

The lower court determined that the part of the Defendants’ news report materials expressed “A” or Plaintiff A’s association as “unlegal and sod group” deviates from the limit of expression, and thus constitutes tort on the Plaintiff’s association as it constitutes an ambiguous and anti-defensive expression of personal character. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the establishment of tort liability arising from infringement of personal rights and the freedom of expression.

3. Scope of reversal

The Defendants appealed to the entire part of the judgment below against the Defendants, and among them, there exist grounds for reversal as to the part against the Defendants regarding the instant expressive act. However, in calculating the amount of consolation money due to the instant expressive act and the remaining parts of the judgment against the Defendants, it cannot be specified in the amount of consolation money due to the instant expressive act by calculating the amount of consolation money to be paid by the Defendants, and the part against the Defendants in the judgment below

4. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan