정보통신망이용촉진및정보보호등에관한법률위반(명예훼손)
The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.
Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. provides that “a person who defames another person by openly exposing false information through an information and communications network for the purpose of defameing a person” and Article 70(1) of the same Act provides that “a person who defames another person by openly exposing facts through an information and communications network for the purpose of defameing a person.” Thus, whether the content posted on an information and communications network by a defendant constitutes “a false fact” or “fact” is a constituent element for determining whether the provisions of the same Article apply.
Therefore, in a case where the defendant is prosecuted pursuant to Paragraph (2) of the above Article, the court should first clarify whether the contents posted on the information and communications network by the defendant are "false facts".
On the other hand, in order to establish the crime of defamation by publicly alleging false facts through an information and communications network under Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the crime of defamation by publicly alleging false facts under Article 307(2) of the Criminal Act, it should be deemed that the publicly alleged facts are false, and the defendant must be aware that it is false in publicly expressing such facts. The burden of proof for the criminal intent is the prosecutor
In addition, in the crime provided for in Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., the term “statement of fact” means a concept substituted by an expression of opinion with respect to value judgment or evaluation, which refers to a report or statement on specific past or current facts in time and space. In a case where the important part of the alleged fact is consistent with objective facts, there is a little difference from the truth in detailed contents or somewhat exaggerated expression.
Even if this is not considered a false fact, it can not be viewed as a false fact.