Letter of Condolence for Kim Il-sungcase

(11-1 KCCR 768, 97Hun-Ma265, June 24, 1999)

A.Background of the case

In this case, the Court for the first time balanced the freedomof press and the right to personality on a newspaper report defaming a public person's public activities, and required the criminal defama-tion statutes to be more narrowly interpreted when applied to a de- famatory expression against a public person's public activities.

The complainant is a member of the Kang-won Province Assem-bly. He sent a letter addressed to Kim Jung-il requesting coopera-tion for a proposed South-North exchange program initiated by theKang-won Province. The letter starts out: "Dear the Commander-in-Chief of People's Army for the Democratic People's Republic ofKorea; Have you been well? You must have passed many days in grief since Premier Kim Il-sung passed away. I would like to ex-press sympathy and encouragement for you." The letter then explainsthat the complainant received a letter from Kim Jung-il once and e-laborates his anti-dictatorship struggle against the past military re-gime. The Board of Reunification and the law enforcement agenciesbegan investigating the contents and the route of delivery of the letter.

Kwang-won Daily News reported on April 9, 1995 the investi-gation under a title "Three Provincial Assemblymen in Contact withNorth under Probe" and a sub-title "Police and Prosecutor on a Letter of Condolence for Kim Il-sung to Kim Jung-il." The newspaper con-tinued using the expression "a condolence letter for Kim Il-sung"seventeen more times until September 6 in the title or the text of thereports on the contents of the letter, the complainant's authorship of the letter, the actions of Ministry of Reunification, and the status of police and prosecutors' investigation.

The complainant filed charges against the publisher and the re-porters of the newspaper for the crime of defamation by means ofpublication and accused that the report was false and delivered for a derogatory purpose. When the prosecutors dismissed the charges on a finding of no suspicion, the complainant sought its cancellation in the Court.

B.Summary of the decision

The Court unanimously rejected the complaint. The Court laidout a general standard for balancing the competing interests of pro-tecting freedom of expression and one's reputation concerning a news-paper report on a public person's public activities as follows:

The standard for constitutional scrutiny of a defamatory news-paper report should vary, depending on the public or private natureof the defamed person and the subject matter reported. Objectivefactsof sufficient public and social value to people contribute to the opinion-making and public discourses that form the basis of democ-racy, and should not be suppressed for fear of criminal prosecution.Expeditious reporting is the life of a newspaper. The newspapershould be free from all threat of criminal prosecution for those re-ports that were delivered under the justified belief of truth but turnedout to be false, or that were false on minor points. A newspaperreport competes with time. The attendant errors in its reports areunavoidable in guaranteeing unlimited, free publication of thoughts andopinions. These expressions are necessary for free discussion andtruth-finding and should be protected alike. Only the falsities pub-lished knowingly or unconfirmed despite the lack of any basis fortruth are outside the protection.

Therefore, we hold that criminal defamation provisions must beinterpreted narrowly when they are applied against defamatory reportson a public person's public activities.

Firstly, even absent a proof of truth of the report, when thecharged acted with mistaken but justified belief in its truth, the crime is not established. Secondly, the Article 310 Criminal Act exemptionfor those reports "solely concerned with the interest of the public"should be broadened in its application. Thirdly, the element of 'de-rogatory purpose' in Article 309 of Criminal Act should be inter-preted narrowly. A judge must find a derogatory purpose only onstringent proof.

In this case, we do not find major falsities in the report. Evenwhere trivial falsities can be found, we also find the charged justified in believing them to be true.

C.Aftermath of the case

The complainant partially prevailed in his civil suit againstKwangwon Ilbo requesting corrective report in the Choon-chun Dis- trict Court and also received a partially favorable judgment his dam-ages suit against the newspaper and the charged, which was affirmedby the Supreme Court.1)