Plaintiff 1 and two others (Law Firm Lee & Lee, Attorneys Yang Hong-seok et al., Counsel for the plaintiff-appellant)

Korea

July 15, 2015

Seoul Central District Court Decision 2013Da5106270 Decided November 27, 2014

1. The part against each of the plaintiffs of the money that orders payment under the judgment of the court of first instance shall be revoked.

The defendant shall pay to each of the plaintiffs 30 million won and each of them 5% interest per annum from August 15, 2013 to August 12, 2015, and 20% interest per annum from the next day to the day of full payment.

2. All remaining appeals by the plaintiffs are dismissed.

3. 95% of the total costs of litigation shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

The judgment of the first instance shall be revoked. The defendant shall pay to each of the plaintiffs 7 million won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. On June 8, 2011, the Democratic Party announced the government to temporarily suspend the construction of the Jeju Naval Port (hereinafter “ Jeju Naval Port”) until a reasonable plan to resolve conflicts was prepared. The personnel and the organization requesting the suspension of the construction of Jeju Naval Base was holding a reply to urge the government to suspend the construction of Jeju Naval Base.

B. On June 9, 201, Plaintiff 1 appeared at the above reporter conference (the Nonparty, who deleted the instant bulletin, was unaware of the fact that Plaintiff 1 was present at the above reporter conference at the time of the deletion of the instant bulletin board, and was not aware of the fact that he was not aware of the fact that he was present at the time of deletion), and on June 9, 201, posted on his Twitter a notice stating that he left a letter of resistance and a written request for the suspension of construction, the said notice was tweeted several times on the same day. On the next day, on the free bulletin board of the naval homepage of the Navy, a notice was posted more than 100 items of a letter that opposed to the construction of the Jeju naval base on June 9, 2011 (the free bulletin board of the Pyeongtaek Navy, posted a notice to the extent of four items per day on a daily bulletin board).

C. On June 9, 201, the Plaintiffs also prepared and posted each notice on the bulletin board on the website of the Navy to the effect that they dissent from the construction of Jeju Naval Base in the Jeju Coastal Village, which is being constructed in the Seopo-si Village of Seopo-si (hereinafter “each notice of this case”).

D. On June 9, 2011, the Navy deleted a notice to the effect that it is against the construction of Jeju Naval Base, including the notice of this case, as well as the fact that it is difficult for the Navy to prevent and unilateral comments on the construction of Jeju naval Base, on the same day from a national level or from a national level. As such, the Navy’s allegation and criticism, which was listed on the free bulletin board on the website, are not helpful to the national level, and thus, it makes it difficult for Jeju naval Base Construction to take measures to delete.

E. The Ministry of National Defense has established the rules on the operation of the Internet and Humannet website on the basis of the "Guideline on the Operation of the website, such as an administrative agency," and the Navy has established the "Operational Rules on the Maritime Internet homepage (hereinafter referred to as the "Operation Rules") based on the above Operation Rules, and the main contents are as follows:

The purpose of this Regulation, contained in the main text, is to provide for the procedures necessary for the operation of an Internet homepage opened at each unit of the Navy for the purpose of promoting the military policies and activities of the Navy in accordance with the Regulations on the Military Service of the Navy, the Regulations on the Management of the Internet homepage of the Ministry of National Defense, and the procedures necessary for the management and operation of the Ministry of National Defense, and for the provision of various kinds of information and gathering of public opinions. Article 5 (1) of the Act is to stipulate the procedures necessary for the operation of the Internet homepage of the Navy Headquarters.

F. On the free bulletin board of the naval homepage of the Navy, the phrase “I inform certain individuals and organizations that it may be deleted without prior notice when writing contrary to the intent of the bulletin board, such as defamation, such as slandering and abusiveation, obscene and indecent expressions, commercial advertisements, wills or inciting a will or inciting, duplicate posting, information leakage of certain individuals, anti-government inciting, brucing, dual act, specific religion and obscenity, etc., for the establishment of a sound debate culture.”

G. Summary of the Non-Party’s testimony by the Non-Party’s witness who deleted each of the instant comments

0. Around June 9, 201, the Order of the Korea Coast Guard's Office was in charge of new media as the Order of the Korea Coast Guard.

0. On June 9, 2011, on the Twitter, a number of notices against the construction of Jeju Naval Base were found to be left in the naval homepage, while managing the free bulletin board of the naval homepage.

0. A notice that agrees with the construction of Jeju naval base on the Jeju naval free bulletin board was located prior to each of the instant bulletin boards, but did not delete political objectives, and even after that, the notice was not deleted.

0 The reasons for the deletion of each of the comments in this case were the point at which the Jeju Sea Base Construction was set up on Twitter, and demonstration was conducted on Jeju-do, and left a letter opposing the construction of Jeju Sea Base on Twitter. After the notice on the Jeju Sea Base was posted on Twitter, it was determined that the group action was politically intended, and each of the comments in this case was deleted when there was a notice containing unfounded slander and bathing.

0 A witness does not determine that the content of a notice as a manager of the naval bulletin board is similar to that of a specific political party, and that there exists a political purpose or tendency. A political decision may be made if a person mentioned or directly supports a party or a party, but a political decision may be made if such content is the same as that of the party or party, on the sole ground that such content is the same as that of the party or party’s assertion, a letter of dissent or opposition is posted on the bulletin board, and thus does not be deleted.

The written comments, such as each of the instant comments, constitute a degree to which citizens can sufficiently express their opinions. Considering the purpose of the free bulletin board installed for free expression of opinions by entering the bulletin board when they want, each of the instant comments did not constitute grounds for deletion of political objectives or political inclinations.

0 The contents of each of the comments in this case were judged to have no political purpose, but at the time, the witness was deemed to have been political intent and deleted (the most important ground for determining the deletion of each of the comments in this case was that each of the comments in this case was posted in group rather than in opposition to the policy and showing political tendency).

0 The witness deemed that each of the comments in this case is a case of criticism without any basis when there is a political purpose or tendency. However, the witness did not delete because it is written by the same person or a person who is deemed the same person.

0 At the time of deletion of each of the instant comments, the Plaintiffs did not know at all about the political inclinations or personal affairs of the Plaintiffs.

[Ground of recognition] Facts without dispute, Gap 1 through 3 (including additional numbers), Eul 1, 2, 5, and 6, each entry, part of the non-party witness of the trial court, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Each of the instant comments does not fall under the grounds for deletion prescribed by the management regulations of the Defendant, but the Defendant’s arbitrary deletion of each of the instant comments constitutes an unlawful act that infringes on the Plaintiffs’ freedom of expression and the right to pursue happiness, and thus, the Defendant is obliged to pay consolation money pursuant to Article 2 of the State Compensation Act.

B. Defendant’s assertion

① At the time of using the instant free bulletin board, the Plaintiffs should be deemed to have entered into the relation of the posting service contract with the understanding of the Defendant’s right to delete notices. The act of deletion of the instant case was to delete a notice that the Defendant determined to be inconsistent with the purpose of installing the message board,

② Considering that the instant free bulletin board is established to collect public opinions and is operated by the number of users and the State, the impact on the formation of public opinion is limited, the freedom of “the formation of public opinion against the Jeju Joint Military and Civilian Tourism Port Construction Project” claimed by the Plaintiffs is not excessively restricted due to the act of deletion of notice on the free bulletin board of this case, and thus, the illegality or freedom of infringement cannot be acknowledged.

③ Considering that the Plaintiffs’ freedom to deliver and communicate the opposing opinions on the Jeju Military and Civilian Port Construction Project is a matter of issue, once the Defendant comprehensively expressed its position on each content of the notices, even if the post is deleted, such freedom has already been achieved, and in this respect, it cannot be deemed that the Plaintiffs have suffered damage.

④ In light of the circumstances at the time, it is reasonable to view that the notices that oppose the Jeju-U.S. construction project itself are comprehensively supported or opposed to a specific fact-finding position in light of the situation at the time, and the notices of “political purpose” should be deemed as constituting grounds for deletion as indicated in the regulations of the Navy or on the homepage of the Navy, in full view of the status and role of Plaintiff 1, and the situation at the time when the notices of 100 conditions, including the plaintiffs’ notices, were posted. Therefore, insofar as the notices were made pursuant to the contract to use the information within the established rules, the instant deletion cannot be deemed as unlawful acts

⑤ Even if it is deemed that the act of deletion does not constitute a ground for deletion, it is difficult to view that the determination by the public official in charge of the Defendant, who deleted the Plaintiffs’ notices by interpreting the provision that constitutes a ground for deletion, is obviously erroneous in light of the overall circumstances, and that the Plaintiffs’ “the benefit to continue to post on the instant freely accepted bulletin board” is very minor in light of the content of the relevant notice and the influence on the instant freely accepted bulletin board, and thus, it is difficult to deem that the act of deletion in this case did not have objective legitimacy as much as the act of deletion did not go against the State’s responsibility for damages.

3. Determination

A. Whether each of the instant notices constitutes grounds for deletion

1) Whether each of the instant comments constitutes a case where each of the political objectives or inclinations exists

A) The original form and core of the freedom of speech and press as stipulated in Article 21(1) of the Constitution is the freedom of expression. If the original form of the freedom of speech and press is considered to be the freedom of autonomous expression of opinion, it shall be subject to the protection by the freedom of expression regardless of using any medium, and it shall include the freedom of political expression using the Internet. In addition, today’s freedom of expression shall include, as a matter of course, opinions such as criticism, checks, or support of government policies, and if such expressions are restricted on the grounds that they have political objectives or inclinations, they excessively restrict the freedom of expression beyond the restriction on other persons’ honor or rights, public morals, and social ethics.

In light of the above circumstances, even if the operating rules of the instant case provide for the grounds for deletion of political purposes or inclinations (in accordance with the purport of the Constitutional Court Order 9HunMa480 Decided June 27, 2002, this provision may be deemed to have infringed on the freedom of expression, and pursuant to the purport of the Constitutional Court Order 2010HunMa88 Decided May 31, 2012, expressive materials that criticize the government's policy or state agency's performance of duties are deemed to be excluded from those subject to the Internet regulation) to constitute such a case, it does not go against the purport of the superior law to reduce the interpretation by directly supporting a specific political party or expressing the opinions of pro and cons against a specific candidate in relation to an election.

In addition, each of the instant notices is consistent with the purpose of the operation of the official bulletin board on the homepage of the Navy called “a space for freely dividing the opinions of the majority of the people against the Navy” and is consistent with the purpose of the operation of the official bulletin board on the homepage of the Navy, and there is no basis to delete any comments other than the instant operational regulations in relation to the use of the official bulletin board on the homepage of the Navy, and there is no evidence to acknowledge that there was no separate agreement between the users and the operators of the official bulletin board in advance through terms and conditions, etc., in light of the fact that each of the instant notices merely expressed the intent in a short time like other bulletin, and there is any demonstration opposing the construction of the official bulletin board on the Jeju Navy naval Base, in the situation where there is a demonstration against the construction of the official bulletin board, the measures to delete

Even if the operating rules of this case extend the term “where there is a political purpose or tendency” to “a content supporting or opposing a specific faction”, each of the instant comments merely constitute an expression of opinion similar to the position of the party or civic group at the time of expressing that it was a citizen who has a opposing position as to the construction of Jeju naval base, which had been a public interest at the time, and did not directly include any content supporting or opposing a specific faction in the contents of each of the instant comments.

B) In light of the fact that the Nonparty, who deleted each of the instant comments, posted each of the instant comments on a short time by collective action, and stated that each of the instant comments was deleted on the date of posting each of the instant comments on his own decision that he had a political intent in light of the fact that each of the instant comments was written at the time when each of the instant comments was written (i.e., the Nonparty stated that he did not delete if it was ordinary, and (ii) stated that he would have expressed his intent to support a specific political party), it cannot be deemed that there was a political inclination or purpose since the debate over the public concerns in which the social issues were actively increasing, and thus, there was a rapid increase in posting comments on the public concerns, which were not considered as having political objectives or inclination (the public issue or the expression of opinions on public officials and public officials, is an empirical rule that is expressed at the time when a public issue becomes an issue).

C) The Defendant asserts that the situation where similar notices were posted more than 100 conditions, Plaintiff 1’s position at the Jeju Sea Base Appellant’s meeting, such as Plaintiff 1’s attendance and remaining letters on the Twitter, etc., the motive and purpose of posting a notice that may be known under the circumstances where the notice is collectively posted, the method or content of expression of the notice, etc., constitutes grounds for deletion.

The Internet’s expression of opinion can not be deemed to have a political inclination or political purpose by collective expression of intent because of its characteristics as a result of a rapid increase in posts on a short time, and it cannot be deemed to have a political inclination or political purpose by collective expression of intent. The question of the Nonparty’s deletion of each of the instant notices is an illegal act. The time when Plaintiff 1 appeared in the said press press, whether Plaintiff 1 was unaware of the Plaintiffs’ personal or political inclinations, and whether Plaintiff 1 was aware of the Plaintiffs’ personal or political inclinations, and Plaintiff 3 opposed to the construction of the Jeju naval base. The title of “Nemanggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggs in the process of this.

2) Whether each of the instant comments constitutes a case where the same person or a person who is deemed the same person without any specific institution’s grounds criticizes the same content at least twice a week or a similar content is posted at least twice a day.

The content of each of the instant comments is merely a violation of the Jeju Naval Base Construction without undergoing democratic procedures and waste of citizens’ taxes. It does not constitute a case of criticism without any ground by specific institutions, organizations, and departments. There is no evidence to acknowledge that the Plaintiffs posted the same content at least twice a week or posted a similar content at least twice a day.

3) Therefore, each of the instant comments cannot be deemed grounds for deletion of the instant operational regulations.

B. As to the assertion that the right to delete under the contractual relationship exists

At the time of using the instant free bulletin board, the Defendant asserts that the Plaintiffs were lawful to delete each of the instant bulletin boards under the Defendant’s autonomous judgment, regardless of the instant operational regulations, since the Plaintiffs understood the discretion to delete the Defendant’s notices and entered into a bulletin board use agreement. However, there is no ground or evidence to deem that the contractual relationship between the Plaintiffs and the Defendant exists, and even if there is a contractual relationship, it cannot be deemed that the Plaintiffs naturally accepted the discretion to delete each of the instant bulletin boards from the act of posting each of the instant bulletin boards to the Defendant. Therefore, the above assertion is without merit.

C. As to the assertion that the instant free bulletin board was established for the collection of public opinion and limited to the formation of public opinion by the number of users and the State, the freedom of expression to be infringed upon by deletion is limited and thus, mental damage cannot be acknowledged.

The freedom of expression includes not only the freedom to freely express its opinion, but also the freedom to maintain and maintain such expression, and there is a method of expressing opinions via other Internet in that it has gone through the process of gathering public opinions and forming public opinion through the purpose of establishing the free bulletin board established for the free opinion of the general public or through the free bulletin board, and even if the function of forming public opinion has ceased compared to the large portal site, it cannot be deemed that there is no mental damage caused by the deletion of the notice. Thus, the defendant's assertion that unless the plaintiffs posted their notices on the free bulletin board, if it is recognized that the plaintiffs violated their freedom of expression, they cannot be compensated for mental damage by any other means (if it is recognized that the freedom of expression was infringed and the liability for damages is not recognized, the above argument is without merit, and the above reason alleged by the defendant is considered when determining the amount of damages

D. As to the assertion that the determination of deletion of the instant notice was clearly erroneous in the appearance, or did not lack objective legitimacy as much as the liability for damages was imposed.

The non-party’s testimony, i.e., comments opposing the construction of Jeju naval base, or comments supporting the construction of Jeju naval base, were not long-term, and such comments were not deemed to have political inclinations or political purposes. No one did there exist any cases before or after the deletion of each of the instant comments. Nevertheless, the non-party, despite the fact that the notices were posted on the Jeju naval base beyond white conditions on June 9, 201, included contents opposing the construction of the free bulletin board without specific prior screening measures, and did not take measures to delete each of the aforementioned contents, and thus, it cannot be seen that the previous regulations of the Working Committee did not have any reasonable grounds to delete each of the following facts: (i) the posting of the instant notices, which did not appear to constitute a political issue; and (ii) the posting of each of the instant notices, which did not constitute a reason to delete each of the instant political issues, should not be deemed to have been based on the fact that there were no reasonable grounds to delete each of the instant notices, including the most collective reasons to delete each of the instant comments.

4. Scope of damages.

Each of the instant comments is a citizen of the Navy’s policies, and the freedom of expression on public concerns should be more protected from the power-related agency. However, each of the instant comments is deleted, and thus, the Plaintiffs suffered emotional distress due to infringement of the freedom of expression. As such, the Defendant is liable to compensate for emotional distress suffered by the Plaintiffs. As to the amount of consolation money for emotional distress, it is reasonable to determine the amount of consolation money as KRW 300,000,000, respectively, in consideration of the content of each of the instant comments, the reasons why each of the instant comments was deleted, and all the other circumstances shown in the arguments.

Therefore, the Defendant is obligated to pay to the Plaintiffs 300,000 won each and the damages for delay at each rate of 5% per annum under the Civil Act from August 15, 2013, which is the day following the delivery date of a duplicate of the complaint of this case, until August 12, 2015, which is the date of the judgment of this case, to August 12, 2015, and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

5. Conclusion

Therefore, each of the claims of this case is justified within the scope of each of the above recognition, and all of the claims are dismissed without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiffs' appeal is accepted, and the decision of the court of first instance decides to order the defendant to pay the above amount by cancelling the part against the plaintiff corresponding to the above recognition fund in the judgment of the court of first instance.

[Attachment]

Judges Osung U.S. (Presiding Judge)