[1] In a case where the press expresses a critical opinion on the existence of a public figure through a private opinion exceeds the limit of expression of opinion and thereby becomes a tort, and in a case of criticism on the member's duty activities, the limitation of restriction on the function of the press such as surveillance, criticism, and check

[2] In a case where a National Assembly member Gap expressed a speech made by the National Assembly Women's Committee at the National Assembly Women's Committee as "sexually verbal abuse" against the press, and the main text is "the act of throwing garbage at the faces of journalists", etc., the case holding that it is difficult to view that the above expressions constitute a personal attack caused by excessively ambiguous speech and expression of opinion, in light of all circumstances, such as the overall content and purport of the speech, and thus, they exceeded the limit of expression of opinion

[1] The expression of critical opinion on a public figure through a private opinion constitutes a function of the press, and thus, cannot be deemed unlawful in principle. However, in a case where the form, content, etc. of an expressive act falls under an insulting and anti-defensive personal attack or an act of publishing distorted facts going beyond a certain degree of exaggeration as to another person’s personal affairs, thereby infringing on a personality right, it may constitute a tort as it goes beyond the limit of expression of opinion and constitutes a tort.

In particular, given that the morality and integrity of public existence, such as a public official or a politician, or whether a duty is being properly performed, should always be subject to citizen’s surveillance and criticism, the function of monitoring and criticism thereof should not be easily restricted unless it does not reach the extent that it is malicious or considerably unreasonable. Furthermore, a member of the National Assembly, who is a representative of the people, is granted a wide range of authority for legislative and government control, and is guaranteed with the exemption privilege for performing his/her duties in a way that he/she can enjoy freedom of speaking from ordinary public officials, etc. in a more flexible manner, and the function of the press, such as monitoring, criticism, and check, should not be reduced without permission.

[2] In a case where the National Assembly member Gap made a statement at the Women's Committee of the National Assembly to the effect that "the press should force the prevention of sexual traffic because it is a power institution," and the newspaper Eul expressed "the sexually abused abuse against the press," in the main text, "the act of spiting garbage on the face of journalists," "the act of spiting spits into a specific person and a specific professional group," and "the act of spiting spits into a specific person and a specific professional group," the case holding that the overall purport of the above private opinion is that the National Assembly member's speech has the special privilege of exemption from the speech of the National Assembly member, and it is hard to view that Gap's speech was made for the purpose of malicious insult against the press, and considering the overall contents and purport of the private opinion, it is difficult to view that Gap's speech was made for the purpose of gaining a certain group such as sexual traffic, and it is difficult to view that Gap's speech constitutes an excessive criticism of various legal issues related to sexual traffic, which is an expression.

[1] Articles 750 and 751 of the Civil Act, Article 21 of the Constitution / [2] Articles 750 and 751 of the Civil Act, Article 21 of the Constitution

[1] Supreme Court Decision 2000Da37647 Decided January 24, 2003 (Gong2003Sang, 688) Supreme Court Decision 2005Da65494 Decided April 9, 2009 (Gong2009Sang, 608) Supreme Court Decision 2010Da108579 Decided February 14, 2013 (Gong2013Sang, 457)

[Judgment of the court below]

[Defendant-Appellant] Cho Jae-il Co., Ltd. (Attorney Choi Jong-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011Na36512 decided January 27, 2012

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As a matter of principle, expression of critical opinion on a public figure through a private opinion constitutes the function of the press, it cannot be deemed unlawful as a matter of principle. However, in a case where the form, content, etc. of an expressive act falls under the attack of insulting and anti-defensive personal character, or infringes on a personal right by publishing distorted facts going beyond a certain degree of exaggeration as to another person’s personal affairs, it may constitute tort as it goes beyond the limit of expression of opinion (see Supreme Court Decision 2005Da65494, Apr. 9, 2009, etc.).

In particular, given that the issue of morality and integrity of public existence, such as a public official or political person, or whether his/her duties are being performed properly, should always be subject to citizen’s surveillance and criticism, the function of monitoring and criticism on it should not be easily restricted unless it does not reach the degree that it is malicious or considerably unreasonable (see, e.g., Supreme Court Decisions 2000Da37647, Jan. 24, 2003; 2010Da108579, Feb. 14, 2013). Furthermore, a member of the National Assembly, a representative of the citizen, is granted wide range of authority on legislative and national control, and is guaranteed exemption privilege so that he/she can perform his/her duties properly, and thus, enjoy freedom of speaking from ordinary public officials, etc. so that criticism about his/her duties can be more flexible, and that the function of monitoring, criticism and check should not be interfered with without permission.

2. After finding the facts as stated in its holding, the lower court determined that the Plaintiff, a member of the National Assembly, expressed the Plaintiff’s “sexually violent language” against the press as to the instant speech made by the Women’s Committee of the National Assembly, and that the main text of the instant private statement states, “the Plaintiff,” “the act of spiting spits in a journalist’s face”, “the act of spiting spits in a specific person and a specific professional group by abusing the spitric black will secret,” and “the act of spiting spits in a specific person and a specific professional group as an ordinary member, beyond normal human being, constitutes an act of infringing the Plaintiff’s personal right, and thus, the Defendant is obligated to compensate the Plaintiff for damages

Furthermore, the lower court rejected the Plaintiff’s assertion that the illegality of the instant private theory was dismissed for the following reasons, in light of the following: (a) the Defendant’s expression used in the instant private theory is likely to be excessively damaged not only to public officials but also the Plaintiff as an individual in light of the method and degree of expression; and (b) the instant private theory appears to have the nature of responding to the Plaintiff’s suspicion related to the Defendant’s private interest in the instant speech; and (c) in such a case, the Plaintiff should have the degree of the number of people to be borne by the Plaintiff differently from the case where the media criticizes public officials on a pure public interest level, it constitutes a case where the Defendant’s insult as above goes beyond the legitimate scope of the press activities, such as surveillance, criticism, and check against the Plaintiff, a public official.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the records, the following facts were revealed: (a) whether or not the Defendant’s resignation, etc. was related to the so-called “the instant case” at the time of the report of the instant private opinion, through the National Assembly’s remarks, etc.; and (b) in such circumstances, the Plaintiff’s remarks through the instant statement to the effect that “whether or not the persons who have received sexual payment come into existence; (c) whether or not the persons who have received political payment? Is the press organizations are not in the power? Whether or not the executives of the press are in relation to the press organizations? Whether or not ○○○○ and ○○○○○ is in relation to the press organizations? It is true that the Plaintiff made a statement to the effect that “the prevention of sexual traffic should be forced because the media companies are the power organizations; and (d) at that time, the “the instant case” was in progress, and there was no suspicion as to whether or not the Defendant’s intention was related to the Defendant’s intention.

① The overall purport of the instant private theory is that the Plaintiff, a member of the National Assembly, made a statement that the Plaintiff was related to the officer of a press organization, among the executives of the press organization, and that “○○○○○○ Press” should receive education on the prevention of sexual traffic, and on the premise of this, the press organization also argued and proposed that the Plaintiff should also receive such education. The Plaintiff’s specific group, such as journalists, should not be insultingly paid or insulting to a group engaged in sexual traffic, on the ground that the Plaintiff has a special right to exemption from the statement of the National Assembly. ② In the instant private theory, the Plaintiff’s use of certain anti-defensive expressions against the Plaintiff in the process of making critical comments on the Plaintiff’s duties as a member of the National Assembly. However, in light of the overall contents and purport, it is difficult to view the Plaintiff’s speech as a private theory prepared for the purpose of maliciously insulting sexual traffic to the Plaintiff. ③ The Plaintiff’s speech is related to the proposal of the public interest as well as the public interest, which is a matter of public criticism or criticism that should be considered in light of various public policy.

Nevertheless, solely on the grounds indicated in its holding, the lower court’s determination that cited the Plaintiff’s claim for damages is erroneous by misapprehending the legal doctrine on tort by freedom of expression and expression of opinion, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)