1. The summary of the facts charged of this case is as follows: “The Defendant is the clinic of the Internet community “○○○○○○○○○○○○○○○○,” which was a member of the Defendant’s name for the purpose of slandering the victim; the victim changed the victim to “○○○○○○○,” which is an clinic used at the Internet portal site “△△△△△△”; and the victim pretended to be the victim as if the victim was written by misrepresenting himself, thereby impairing the victim’s reputation by openly pointing out false facts on the “○○○○○○○○○” bulletin board of the above community.

For reasons indicated in its holding, the lower court found the Defendant guilty on the ground that the Defendant’s act constituted defamation under Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”).

2. However, the lower court’s determination is difficult to accept for the following reasons.

Article 70(2) of the Information and Communications Network Act provides, “Any person who defames another person by revealing openly false information through an information and communications network for the purpose of defameing a person shall be punished by imprisonment with labor for not more than seven years, suspension of qualifications for not more than ten years, or by a fine not exceeding 50 million won.” Here, “fence of facts” refers to a report or statement on facts in time and space and in a specific past or present situation. Therefore, in order to apply the aforementioned provisions to acts of putting a notice on an Internet website for the purpose of slandering a person, the relevant notice shall be a content of a report or statement on specific facts with respect to that person. The mere act of putting a notice in a false manner by misrepresenting a person and pretending that it was directly prepared by that person does not constitute an act of revealing the fact against that person, and thus, the said provision cannot be applied to the relation to that person (see Supreme Court Decision 2015Do1012, Mar. 24, 2016).

According to the above legal principles, even if the defendant misrepresented the victim in this case as if the victim was written by misrepresenting himself, the act does not reveal facts about the victim, and thus does not constitute defamation under Article 70(2) of the Information and Communications Network Act.

Nevertheless, solely for the reasons indicated in its holding, the lower court erred by misapprehending the legal doctrine on Article 70(2) of the Information and Communications Network Act.

3. Therefore, the lower judgment is reversed, and 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 Min You-sook (Presiding Justice)