(영문) 서울고등법원 2014.8.29.선고 2013나64559 판결

A. Within seven (7) days from the date this judgment became final and conclusive, the Defendant shall have the conductor read the counterargument report written in the KBS 2TV program (attached Form 1) at a more rapid speed than ordinary speed, and shall broadcast once by means of displaying the title of the said counterargument report on the screen while reading it.

B. The plaintiffs' primary claims and the remaining conjunctive claims are all dismissed.

2. Of the total litigation costs, 1/2 shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

A. In the first place, the Defendant shall start the KBS 2TV program, which is first broadcasted within 7 days from the date this judgment became final and conclusive, have the operator read the correction report (attached Form 2), and have the operator read the correction report (attached Form 3), and have the operator read the correction report (attached Form 3) at the beginning of the KBS 2TV program, and each operator shall not be faster than the ordinary speed, and shall continue to display the title of the report on the screen with the caption below.

[Plaintiffs sought only a corrective statement under the Act on Press Arbitration and Remedies, etc. for Damages Caused by Press Reports and the Act on Press Arbitration and Remedies, etc. for Damages Caused by Unlawful Acts as stipulated in the Civil Act in the first instance trial, and added a preliminary claim for a corrective statement in the first instance trial.]

B. Preliminaryly, the Defendant shall start the KBS 2TV’s program first broadcasted within seven days from the date this judgment became final and conclusive, and have the conductor read the counterargument report (attached Form 4), commence the KBS 2TV’s program, and have the conductor read the counterargument report (attached Form 5), and each conductor shall not be more rapid than the normal speed, and shall continue to display the title of the report in the size of ordinary caption on the screen as below.

2. Purport of appeal

A. The plaintiffs

The judgment of the first instance shall be amended as follows:

Within seven days from the date this judgment became final and conclusive, the Defendant shall have the licensee read the correction report (attached Form 2), and shall have the licensee read the correction report (attached Form 3), and shall have the operator read the correction report (attached Form 3) at the beginning of the KBS 2TV program, and shall continue to indicate each of the correction reports on the screen as follows.

B. Of the judgment of the first instance court against the defendant, the part against the defendant shall be revoked, and all of the plaintiffs' names corresponding to the above revoked part shall be dismissed.

Reasons

1. Basic facts

The following facts are acknowledged by comprehensively taking account of the respective descriptions and images of Gap evidence 5-3, Gap evidence 17-1, 2, Gap evidence 33, Eul evidence 4 and 5-2, and the overall purport of the pleadings.

[1]

○○ Plaintiff A Co., Ltd. (hereinafter referred to as “Plaintiff”) is a company with the purpose of entertainment agency business, etc., and Plaintiff B is the representative director of Plaintiff B.

○ Defendant is a television broadcasting business operator that produces and plays a program called 'E' from KS 2TV and 'D'.

G, which had been ○ artisted, concluded an exclusive agreement with the Plaintiff Company on October 14, 2006, and worked as a member of a male group of the Plaintiff Company as a member of the Plaintiff Company. G, around January 2008, filed a lawsuit seeking confirmation of invalidity of an exclusive agreement against the Plaintiff Company under the Seoul Central District Court 2008Gahap48914, and the said judgment became final and conclusive around that time, in violation of Article 103 of the Civil Act.

[2]

○ The Defendant broadcasted the following pages as a member of a male group 'M’ with a special contributor from FKBS 2TV 'E' program:

Socialist: G.G. S. S. : I am you see that it was an abnormal company, and I am we see it, and I am we see that I am we see it as ‘I am we see that I am we see it? I am we see that I am we see it? I am we see that I am I am you am you see it? I I am am you am you see. I I am we am you we am you we am you see. I I am we am we see that I am I am we am we am we am we see we am we am we am we see we am we am we we am we we see we am we am we am we am we see we we we am we am we am we we am we we see we we we am you we we we we we we see we will we we we am you we am you we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we we.......................................................................................................

In addition, the defendant broadcast the following contents in the 'I'cop during the process of HKBS 2TV 'D' program:

I have been examined as follows: It was investigated that the old art contract practice has been flicked in the entertainment community of Korea.There is another problem in the old art contract of Ghana.The E-mail of this case is the common old art contract, and the 10 foot, "I would like to be present only. I would like to present before it." He am flick's disease so (flick's action) and then I am flick?G: example, I am flick.

[3]

OE is a type of earth showor show that the first-class contributor shows about his or her experience and thoughts in accordance with the progress of the organizer. D' is a program that is intended to promptly and accurately deliver the news existing in the entertainment community.OE has been closed and then the program is aired in the KBS 2TV during the same time period. The program is a type of arts arts program in which the performers are able to play sports by contributing to the celebrative health server and make a large decision on the sports.

2. The parties' assertion

A. The plaintiffs

1) In the first place, G’s statement made by the Defendant through “E” and “D” is false, the Plaintiffs have the right to request the Defendant to make a corrective report in accordance with the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports, and even if the said broadcast program does not constitute press reports, the Plaintiffs have the right to request a corrective report as a disposition for restoration of their reputation due to tort

2) Preliminaryly, the Plaintiffs pursuant to the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports to the Defendant.

A right to demand a counterargument report shall be entitled.

B. The plaintiffs' primary and conjunctive claims are without merit for the same reasons as the defendant below.

1) The term “E” and “D” are artistic programs, not media reports, but corrective reports or counterargument reports.

2) The broadcast content of 'E' and 'D' mentioned in 'E' is true. The former affiliated companies and their representatives mentioned in 'E' are not specified as the plaintiffs.

3. Determination

A. Press reports

1) Articles 14 and 16 of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports stipulate that the subject matter of a corrective report and a counterargument report is "press report, etc. on the assertion of actual results", and Article 2 subparagraph 1 of the same Act refers to broadcasting, newspapers, periodicals including magazines, news communications, and Internet newspapers, and "broadcasting" refers to television broadcasting, radio broadcasting, ion-based broadcasting, and digital multimedia broadcasting under Article 2 subparagraph 1 of the Broadcasting Act, and subparagraph 2 of the same Article defines "broadcasting report" as "press report," and subparagraph 15 of the same Article refers to a report on factual arguments of the press. In addition, the prior meaning of "press report" is "a novel of new news or its news to the general public through a large medium of transmission (see Internet negative language prior to the Internet)."

2) Clearly, the Defendant’s “E” and “D” broadcast constitutes a television broadcast. The Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports provides that “E” and “D” are the factual assertions of the media, and does not always limit the subject of corrective reports or counterarguments to news or current news programs, etc. as seen earlier. As seen earlier, “E” takes the form of a news show that the contributor did not have a usual display, and delivers it to the general public through the broadcast. “△△△△” itself is the program that is sent by the Defendant to the general public in a prompt and accurate manner through the news of entertainment, and the part of the statement of “E” and “D” are the subject of corrective reports, etc. based on the premise that G actually experienced the same day, and the content of “E” and “E” are also the subject of corrective reports and the subject of corrective reports, etc. within the scope of each of the viewers’ claims that are determined by each of the above media reports and the subject of corrective reports.

(b) Details of the victim;

1) The term "person who suffers damage due to the failure of the press report to be true" under Article 14 of the Act on Press Arbitration and Remedies, etc. for Damage Caused by the press report refers to a person who is clearly recognized as having an individual relationship with the contents of the report and who has an interest in the press report on the contents of the report on the grounds that the contents of the report violate his/her personal legal interests due to the failure to be true. In determining whether the contents of the report are "a person who is obviously recognized as having an individual relationship with the contents of the report", the contents of other broadcasts or newspapers after the report shall not be considered and judged. However, in light of the meaning of the right to request for a corrective statement, even if the contents of the report are not specified in the report and if it is not a person with prior knowledge, the person who is the object of the report itself with the contents of the report, the contents of the report should be compared objectively with the contents of the report in question, and thus, a person who is obviously recognized as having an individual relation with the person in question, etc.

In addition, in order to establish tort caused by defamation, the victim must be specified, but the victim’s name must be specified for the specific purpose, and even if his/her name is not indicated, the victim can be deemed to have been identified if it is possible to find out who is identified by considering the contents of the expression in light of the surrounding circumstances (see, e.g., Supreme Court Decision 200Da68306, May 10, 2002).

2) Comprehensively taking account of the statements in Gap evidence Nos. 1 through 3 and 5 through 7, and the purport of the entire argument in witness G’s testimony, the company belonging to AG entering into an exclusive agreement with the J, which entered into an exclusive agreement with the plaintiff company, shall be the only fact of the plaintiff company, at the time when the plaintiff company entered into the exclusive agreement with the plaintiff company, and thereafter, the plaintiff company was a member of the group called "K at the time when the AG entered into the exclusive agreement with the plaintiff company, and thereafter filed a lawsuit for invalidation of the exclusive agreement with the plaintiff company, which was already known to the general public in press reports, etc., and the fact that the plaintiff who threatened the plaintiff due to

In full view of the above facts of recognition in light of the legal principles as seen earlier, each of the broadcasts of this case is related to the plaintiffs, and it is determined that the plaintiffs were identified as victims.

1) A victim who requests a corrective report on the content of a press report, etc. as to a factual assertion bears the burden of proving that the press report, etc. is not true (see, e.g., Supreme Court en banc Decision 2009Da52649, Sept. 2, 201; Supreme Court Decision 2005Da58823, Jan. 24, 2008).

2) It is insufficient to recognize that the statements and images of Gap evidence Nos. 8 through 35, testimony of the witness L of the first instance trial alone is false, and there is no other evidence to acknowledge that the statements of G broadcasted through "E" and "D" are false.

Therefore, all of the plaintiffs' claims seeking corrective reports as a corrective report under the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports and as a disposition for restoration of reputation under the Civil Act are based on the premise that G's above remarks are false, and therefore, it is without merit without further review.

D. Determination on the claim for a counterargument report

1) The content reported by the Defendant through 'E' and 'D' is a statement of fact that G left the Plaintiff Company by shouldering the Plaintiff Company Byung, and the above contents may interfere with the Plaintiffs' social evaluation. As such, the Plaintiffs have the right to claim a counterargument report to the Defendant pursuant to Article 16 of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports regardless of whether the content of the report is true or not, regardless of the Defendant's intention, negligence or illegality.

As to this, the defendant asserts that the counterargument report to be sought by the plaintiffs may be rejected because it is clearly different from the facts, but the evidence submitted by the defendant alone is insufficient to recognize that the counterargument report to be sought by the plaintiff is obviously different from the facts, and since there is no other evidence to acknowledge

2) Furthermore, we examine the contents, quantity, and method of the counterargument to be broadcasted by the Defendant.

A counterargument report shall be made in such a way as to generate the same effect as the same channel, space, or place where the report was made in order to form a fair public opinion (Article 16(3) and Article 15(6) of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports). The broadcast of "C" in the same time period and the same channel is being broadcast as above. However, the broadcast of "E" is a program in which the performers experienced and think about the fact in the form of a Saturday show, while the "C" is an entertainment program in the form of an artist's contribution, and it is difficult to expect that two broadcasting programs are completely different in nature, and that viewers will be similar. Therefore, it is difficult to expect that the broadcast of the counterargument report in this case would have the same effect as the broadcast of "E".

Therefore, considering the contents and quantity of the report in the above 'E' and 'D', various circumstances revealed in the arguments, such as the method of expression, etc., the plaintiffs seek [Attachment 4] and [Attachment 5] each counterargument report shall be read only in 'D' by revising the contents of each counterargument report in accordance with the counterargument report in [Attachment 1], and shall broadcast the counterargument report once by reading them (it is not the first head of the program, but it is difficult to view that the report subject to the counterargument is not the first head of the program, but can have the same effect as the original broadcast to be broadcasted in the first head). At the request of the plaintiffs, the methods of displaying the screen shall be determined as stated in the text.

4. Conclusion

Therefore, all of the plaintiffs' primary claims are dismissed as they are without merit, and the conjunctive claims are justified within the above scope of recognition, and the remaining claims are dismissed as they are without merit. The judgment of the court of first instance is partially unfair and it is so unfair as the judgment of the court of first instance is modified as per Disposition.