[1] Method of determining whether a film contains any content that defames a specific person’s reputation, and in the case of a commercial film based on historical facts, it may be somewhat acceptable to find out historical facts to the extent that it does not amount to an intentional malicious display (affirmative), and matters to be taken into account in making such a determination (affirmative)

[2] Requirements and criteria for determining whether a description in a film modeled on a case involving a deceased person constitutes defamation against the deceased person

[3] The case affirming the judgment below dismissing the application for provisional disposition on the ground that there is insufficient proof of the right to be preserved and that it is difficult to recognize the necessity of preservation

[1] Whether the contents of a film contain any content that impairs a specific person’s reputation shall be determined by comprehensively taking into account the objective contents of the film, as well as the overall appearance of the film contents, stories and screen composition, the ordinary meaning of the film used, and its connection method, etc., and the overall appearance of the film contents to the audience in contact with the film with the general public at ordinary times, and the social flow, etc., which is a wider theme or background containing the film, should also be considered. In the case of a commercial film produced by setting the general public as the audience for profit-making purposes, if it is based on historical facts, the film producer may be admitted as an essential area of a commercial film insofar as the film producer does not reach an intentional display of bad faith. Moreover, on the premise that the ordinary audience in contact with a commercial film does not coincide with the actual facts, it is necessary to take into account the determination of whether to view and maintain a tension between such historical facts and dynamic relations, on the premise that the film is not in accord with the actual facts.

[2] In order to constitute defamation against the deceased in a film that modeled the case involving the deceased, a specific statement of false facts must be made that may undermine the social and historical assessment of the deceased. Whether there was such false information should be determined based on the reasonable audience with a normal and sound common sense.

[3] In a case where Gap's father Eul, who died in the common guard district of Gap's newspaper Eul, produced the film with Eul's seat as Eul's death, and author who is in charge of Gap's scenario preparation and connection with the film's death, and who is in charge of supervision of Gap's film, applied for provisional disposition against Eul's reputation and personality rights as false facts, and against Eul's production and screening of the film, etc., the case affirming the judgment below's dismissal of the application for provisional disposition against Byung's right to reputation and ex post facto personal rights on the ground that even though the film described as Gap's first class as Gap's death in relation to Gap's internal corruption, unlike Eul's assertion, it is insufficient to view that such description does not go beyond the scope of freedom of commercial film art and expression, and even if the part of Eul's figure as Eul's death is described adversely in the film, it is difficult to see that Eul's personality rights are infringed or it is difficult to see that the contract for the production of the film and the necessity of Byung's right to be cancelled after the commercial film.

[1] Article 751 of the Civil Act / [2] Article 751 of the Civil Act / [3] Article 300 of the Civil Execution Act, Article 751 of the Civil Act

[1] Supreme Court Decision 2007Da3483 Decided July 15, 2010 (Gong2010Ha, 1622) / [2] Supreme Court Decision 2010Da8341, 8358 Decided June 10, 2010

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Attorney Im Jae-hee et al., Counsel for plaintiff-appellant)

Non-Engine Co., Ltd. and one other

Seoul High Court Order 2017Ra21408 dated October 16, 2018

All reappeals are dismissed.

The grounds of reappeal are examined.

1. Whether the contents of a film contain any content that impairs a specific person’s reputation shall be determined by comprehensively taking into account the objective contents of the film, as well as the overall appearance of the film contents, stories and screen composition, the ordinary meaning of the film used, and its connection method, etc., based on the overall impression given to the audience visiting the film with ordinary care, and also on the social flow, etc., which is a wider theme or background containing the film. In the case of commercial movies produced by setting the general public as the audience for profit-making purposes, the film producer may be admitted as an essential area of commercial movies insofar as the film producer does not reach the intentional display of bad faith. Moreover, on the premise that the ordinary audience visiting commercial movies do not coincide with the actual facts, it is necessary to consider the determination of the Supreme Court by considering the perception and maintenance of tension between the historical facts and extreme tension between the film contents, as well as the social flow, etc. (see, e.g., Supreme Court Decision 2005Da371788, Apr. 7, 2005).

In order to constitute defamation against a deceased person, a film modeled on a case involving a deceased person must contain specific false information that may undermine the social and historical assessment of the deceased person. Determination on whether such false information was made should be based on the reasonable audience with a sound common sense (see Supreme Court Decision 2010Da8341, 8358, Jun. 10, 2010, etc.).

2. A. The reasoning of the lower judgment and the record reveal the following.

On February 24, 1998, the applicant is the father of the company other than the applicant who belongs to the △△△△△△△△ Group (hereinafter “the deceased”). The respondent is the producer who produces a film called “a war against the deceased’s death” in the name of the deceased, and the respondent 2 is the author who is in charge of the preparation and a scenario of the film, and the film supervising the respondent. The applicant filed a provisional disposition against the respondent to seek a ban on the production, screening, etc. of the film including the above contents, by infringing the deceased and the applicant’s reputation and personal rights, as a false fact.

B. The first instance court determined that part of the film content claimed by the applicant infringes on the rights of the deceased and the applicant, and partly accepted the application, including those parts, while not producing and screening the film.

However, the lower court revoked the first instance court’s decision and dismissed the application for provisional disposition on the corresponding portion on the ground that it is difficult to deem that the first instance court’s determination that the deceased and the applicant infringed the rights of the deceased, as well as the need for preservation, sufficient explanation. The reasons are as follows.

(1) Unlike the allegations by the applicant, it is insufficient to view that the deceased’s reputation or right of ex post facto personal attack is infringed, in light of the following: (a) although the white site, which is identified as the deceased, is described as the deceased as being in relation to irregularities in the military as if it were deceased; (b) the film’s overall contents describe it as a human body representing the ship and justice; and (c) the description related to the cause of death is difficult to be deemed as exceeding the scope of the freedom of art

We examine the part that contains negative description of the applicant, such as: (a) the white paper, which is identified as the applicant in an unlawful way, by investigating the said case in an unlawful manner; and (b) misleads the applicant as a person who is free from the pain of other bereaved family members by concentrating only the said case; and (c) the film’s overall reduction distance is as follows: (a) the truth about the death of the white paper is difficult to be revealed in accordance with due process; and (b) the military authorities manipulates the cause of the death of the child in a situation where suicide by the military authorities; and (c) the military authorities’ proposal to handle the death of the military; and (d) urge the fundamental resolution of the military doctor’s death by emphasizing the military authorities’s proposal to handle the death on duty against the ASEAN. Some

Finding historical facts in commercial films should be permissible to a certain extent, and measures should be taken to prevent the contents of the film from being confused with the death of the deceased in the course of captioning the caption or publicity of the film, thereby protecting the honor or personal rights of the deceased or the applicant.

In full view of these, it is difficult to deem that the vindication of the right to be preserved is sufficient.

(2) It is difficult to deem that there is a need to preserve the film since the respondent has actually renounced the production of the film after the termination of the investment contract between the film investor and the respondent, non-Engine corporation.

C. Examining the record in light of the aforementioned legal principles, the lower court’s determination is justifiable, and did not err by misapprehending the legal doctrine on defamation or infringement of personal rights, as alleged by the applicant.

3. The re-appeal by the applicant is without merit, and it is all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)