Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

(Defamation)

Defendant

Defendant

Attorney Lee Dong-young (National Assembly)

High Court for Armed Forces Decision 20189 Decided September 19, 2018

March 2, 2020

The judgment below is reversed, and the case is remanded to the High Court for Armed Forces.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. “Purpose of slandering a person” as prescribed by Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is to require an offender’s intent or purpose. Whether a person is intended to defame a person should be determined by comparing and balancing the content and nature of the alleged fact, the scope of the counter-party against whom the publication of the fact was made, and the degree of infringement of honor that may be damaged or damaged by the expression. Inasmuch as the term “purpose of slandering” conflicts with the direction of an offender’s subjective intent, not only for the sake of public interest, but also for the sake of public interest, barring any special circumstance, if the alleged fact concerns public interest. Here, “if the alleged fact concerns public interest,” it should be objectively deemed that the alleged fact concerns public interest, and such fact should also be expressed for public interest for the sake of subjective public interest. Whether the offender is widely related to public interest, such as the State, society, and many other general people’s public interest, and whether the offender’s motive and purpose of defamation or public interest belongs to the general public interest.

11. 29 Supreme Court Decision 2016Do14678 Decided January 29, 201

2. According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On December 28, 2016, the Nonindicted Party posted a letter that only ○○ and △△△△△△△△△△ in which approximately 200 students joined, stating the intention of the chairperson of the total school and that he/she will start to come up with △△△△△△△△△.” The Defendant posted a letter containing a letter of the text of the instant facts charged in the instant case (hereinafter referred to as the “instant text of the comments”) in the form of comments on the Nonindicted Party’s comments, and the Nonindicted Party again expressed his/her opinion by comments, and the Defendant and the Nonindicted Party expressed his/her opinion by means of preparing comments on each other.

B. The main contents of the comments posted by the Defendant are to express his opinion on the eligibility of the candidate and the matters to be observed if they are equipped with ○○ and students who want to run for the president of the total student group based on ○○ and the experience in the activities of the student council.

C. As a specific case supporting the above opinion, the Defendant: (a) expressed the victim’s real name in the instant text, and (b) attempted to go to the election of the president of the Korean Federation without paying the student membership fee; (c) there was a case where the Defendant slandered the other party candidate and expressed his personal appraisal since then, and then divided the departments and expressed his personal appraisal.

D. On October 2015, the victim resigned from a candidate on December 2015, 2015, according to the interpretation of the election commission that, after running for the election of the president of the total number of students in 2016, only if he/she paid unpaid student membership fees at a latest and later, he/she could not maintain his/her candidate qualification. The victim resigned from a candidate on December 2015, and was in charge of ○○ and Vice-President in 2

E. The Nonindicted Party had expressed comments on the Defendant’s comments, thereby having short his mind.

The defendant stated that he will be audited and audited, and the defendant expressed his opinion that he will be able to work together at ○○ and the student conference while expressing that he will attract the Nonindicted Party in the comments posted.

F. Many of ○○○ and students, other than the Defendant, posted a letter stating the Nonindicted Party’s comments on the Nonindicted Party’s eligibility for the withdrawal of the president, but there was no reference regarding the content of the instant letter among them.

3. The following facts can be revealed from the above facts. ① The comments of this case are part of the series of comments made by the Defendant to clarify and advise the Nonindicted Party’s opinion on the qualification or support to be equipped with the Chairman of the Board of Students. ② The Defendant referred to the case when the victim was standing for the Chairman of the Board of Students in the immediately preceding year through the instant comments as a specific case in support of his own opinion, and the key contents are deemed to correspond to objective facts. ③ The candidate for the Chairman of the Board of Students refers to a certain extent of other students’ mentions or expresses his opinion about his behavior as a candidate even after he was standing for the candidate, as well as in the time when he was standing for the candidate. ④ The Defendant did not use the victim’s attacked expressions such as the name of the victim, referring to the victim “ while the Defendant was standing for the Chairman of the Board of Students.” The Defendant did not deem that there was no more social conflict between the victim’s individual victim’s meeting and the interest in the instant case.

In light of the aforementioned legal principles, the following conclusions may be derived. The comments on the instant comments are related to the interest and interest of ○○ and students related to the candidate for the president of the total school. The Defendant drafted the instant comments in order to provide ○○○ and students who intend to run for the president of the total school, including Nonindicted Party, with an opinion helpful in making decisions. Accordingly, the major motive and purpose of the Defendant is for the public interest, and it is difficult to view that the Defendant’s major purpose is to defame the victim.

Nevertheless, the lower court upheld the judgment of the first instance court that found the Defendant guilty of the instant facts charged by deeming that there was a purpose of slandering the victim. In so doing, the lower court erred by misapprehending the legal doctrine on “purpose of slandering” under Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., thereby adversely affecting the conclusion of the judgment

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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 Min You-sook

Justices Kim Jae-hyung

Justices Lee Dong-won