[1] The meaning of “a statement of fact” in the crime of defamation and the standard for determining whether a report or statement is a fact or an opinion / In a case where a statement about a fact that impairs the victim’s social evaluation objectively was expressed in the form of a professional or abstract side, not a decent expression, by means of reporting, writing, or citing a third party’s speech, but was expressed in the form of a specialized or abstract side, but it is possible to view the fact as a whole to the purport of the expression, whether a statement of fact is deemed a statement of fact (affirmative); and the matters to be considered when a statement of fact is deemed as a statement of fact in the form of an expression

[2] Matters to be considered when determining whether the crime of defamation is established due to an open speech, such as a briefing session, etc.

[3] The case holding that in a case where the Defendant was indicted for impairing the reputation of the Defendant by making a false statement to the effect that “A, as a co-chairperson of the National Countermeasures Headquarters in the Sewol ferry and a full-time member of the National Assembly on April 16, 200, was guilty of damaging the reputation of the Defendant by making a false statement to the effect that “A, during seven hours from the date of the election of the Sewol ferry, was aware of the suspicion that A had been engaged in narcotic drugs or Switzerland during the 7 hours from the date of the election of the NIS,” while making an interview against the reporters, citizens, etc. of the press organization, the case holding that the Defendant cannot be punished as defamation on the ground that it cannot be deemed that the Defendant made a false statement of the specific fact that “A was unable to perform his/her duties on the ground that he/she was in the form of narcotic drugs or she was in the Republic of Korea, and that he/she did not perform his/her duties on the part of a public figure in the form of suspicion against public interest issues related to public figures,

[1] In a democratic country, through the free formation and delivery of public opinion, a democratic political order should be created and maintained by gathering and maintaining the majority opinion. As such, the freedom of expression and, in particular, the freedom of expression on public concerns should be guaranteed as an important constitutional right. However, inasmuch as an individual’s private legal interests should be protected, the freedom of expression and the protection of personal rights should be determined by weighing and balancing the value obtained from the freedom of expression and the value achieved by the protection of personal rights in a specific case.

The term “statement of fact” in the crime of defamation refers to a report or statement of a specific past or present fact in time or space, which is a substitute for an expression of opinion containing a value judgment or evaluation, and that can be proved as evidence. In distinguishing whether a report or statement is a fact or an opinion, the overall circumstances, such as the ordinary meaning and usage of a language, the possibility of proof, the context in which the expression in question was used, the social situation in which the expression was made, etc. should be considered. objectively, even if a statement of fact that lowers the social assessment of a victim was expressed in the form of a report, a written statement, or a third party, rather than a decent expression, rather than a decent expression, a statement of fact should be deemed to have been made in the manner of expressing the entire purport of the expression.

However, in the case of a full-scale public figure of the head of the public debate, it is necessary to assume criticism and suspicions, and to overcome such criticism and suspicions through piracy and re-brusation, and the freedom of expression on the public figure should be guaranteed as an important constitutional right as much as possible. Therefore, in the case of an expressive act that raises doubts about the public figure related to the public figure, it should be careful to evaluate it as a statement of fact in the time of rupture, unlike in the case of the public figure.

[2] In a case where the establishment of defamation caused by an open statement, such as a press conference, etc. is at issue, whether the victim caused by the statement is a public figure or a private figure, whether the statement concerns a matter of public interest, or whether the statement concerns a matter of public interest, or whether the statement concerns a matter of public interest or a matter of social character that the citizen ought to know objectively, and thus, contribute to the formation of public opinion or public debate, the difference between the public interest issue of public figures and the matter of private concern should be determined. If the expression in question is belonging to a private sector, the personal right of reputation protection may take precedence over the freedom of expression. However, if the expression in question belongs to a public and social meaning, the restriction on the freedom of expression should be mitigated. In particular, if the Government or a government agency’s decision-making or performance of duties is always subject to citizen surveillance and criticism. Such surveillance and criticism can only be made normally when the freedom of expression is sufficiently guaranteed, and the government or a government agency still has a considerable influence in the performance of duties of a public official or private person.

[3] In a case where the Defendant was indicted on charges of damaging Party A’s reputation by pointing out false facts as co-chairpersons of the Sewol ferry’s National Countermeasures Headquarters and “the National Joint Association of April 16” (hereinafter “Joint Association of April 16”), the case holding that, in light of all the facts, it is difficult to readily conclude that the lower court erred by misapprehending the legal doctrine as to the public nature of defamation or by failing to provide specific information in the process of expressing opinions on the illegality of search and seizure of a public office held by the Defendant and/or 16 office and the need to disclose the public nature of the crime of defamation, and thus, it is difficult to readily conclude that Party A’s assertion of facts related to the public nature of the crime of defamation or by failing to perform his/her duties, on the ground that Party A was in the process of expressing opinions on the illegality of search and seizure of a public office held by the Defendants and 4/16 office and on the following grounds.

[1] Article 21 of the Constitution, Article 307 of the Criminal Act / [2] Article 21 of the Constitution, Article 307 of the Criminal Act / [3] Article 21 of the Constitution, Article 307 (2) of the Criminal Act, Article 325 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2010Do17237 Decided September 2, 201 (Gong2011Ha, 2152) / [1] Supreme Court Decision 2007Do5312 Decided November 27, 2008 (Gong2008Ha, 1831) Supreme Court en banc Decision 2014Da61654 Decided October 30, 201 (Gong2018Ha, 2347) / [2] Supreme Court Decision 2005Do3112 Decided October 13, 2006

Defendant 1 and one other

Defendants and Prosecutor

Law Firm oriented and 2 others

Seoul High Court Decision 2016No506 decided September 8, 2016

The guilty part of the judgment of the court below against Defendant 1 (including the acquitted part) is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 2’s remaining appeals and prosecutor’s remaining appeals are all dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s ground of appeal on defamation part

A. The key issue is whether this part of the issue is a public figure, that is, a suspicion of public concern related to the official seal, constitutes defamation.

B. In a democratic country, through the free formation and transmission of public opinion, the democratic political order should be created and maintained by putting together the Majority Opinion, and thus, the freedom of expression and, in particular, the freedom of expression on public concerns should be guaranteed as an important constitutional right. However, inasmuch as an individual’s private legal interests should also be protected, the freedom of expression and the protection of personal rights should be determined by weighing and balancing the value obtained from the freedom of expression and the value achieved from the protection of personal rights in a specific case (see Supreme Court en banc Decision 2014Da61654, Oct. 30, 2018).

The term “statement of fact” in the crime of defamation refers to a report or statement of a specific past or present fact in time or space, which is a substitute for an expression of opinion containing a value judgment or evaluation, and that can be proved as evidence. In distinguishing whether a report or statement is a fact or an opinion, the determination ought to be made by taking into account the overall circumstances, such as the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression in question was used, the social situation in which the expression was made, etc. (see Supreme Court Decision 2010Do17237, Sept. 2, 201). objectively, a statement of fact that lowers the social assessment of a victim is made by means of citing a written report or a written statement or a written statement of a third party, but it is expressed in a specialized or converging manner, rather than by citing a written report or a written statement, if the statement was made by means of suggesting the existence of a fact in light of the overall purport of the expression (see Supreme Court Decision 2007Do53127, Nov. 27, 2008).

However, in the case of a full-scale public figure of the head of the public debate, it is necessary to assume criticism and suspicions, and to overcome such criticism and suspicions through piracy and re-brupting, and the freedom of expression on the public figure should be guaranteed as an important constitutional right (see Supreme Court en banc Decision 2014Da61654, supra). Therefore, in the case of an expressive act that raises doubts about the public figure related to public figures, it is necessary to pay attention to evaluating it as a statement of fact by rhetort, unlike in the case of the general public.

If an issue arises as to whether a crime of defamation occurred due to an open statement, such as a briefing session, etc., the following should be considered: (a) whether a victim of the statement is a public figure or a private figure; (b) whether a statement pertains to a purely private matter; and (c) whether a statement pertaining to a matter with public character or sociality that requires objectively to be known to the public; and (d) whether it contributes to the formation of public opinion or public debate on a matter with public nature or sociality; and (b) the difference between the public interest issue and the matter belonging to a private sector. In the event the expression in question is included in the private sector, the personal right to protect the public figure may take precedence over the freedom of expression; (c) however, if the expression in question falls under the public and social meaning, the restriction on the freedom of expression ought to be mitigated. In particular, the determination or criticism of the Government or a State agency should always be made when the freedom of expression is sufficiently guaranteed; and (d) whether such determination or criticism can be made normally due to an attack against the public official or public official’s interests.

C. Summary of facts charged

The summary of this part of the facts charged is as follows. Defendant 1, on June 22, 2015, expressed that the police did not harm the press reporters and citizens, etc. on April 16, 201, for the purpose of searching and searching offices of the police (hereinafter referred to as “4.16 solidarity”), and there was a suspicion for the citizens of “(the seizure and search of facts is low. I do not do it. I do not seem that I would like to know that I would like to know that I would not know that I would like to know that I would not know that I would like to know that I would like to know that I would like to know that I would like to know that I would not like to know that I would like to know that I would like to know that I would like to know that I would not like to know that I would like to know that I would like to know that I would like to know that I would like not have been able to perform their duties. I would like to see that I would like to see that I would not know that I would like to know that I would like to know.

D. The judgment of the court below

The lower court found the Defendant guilty on the following grounds.

The statement of this case is about the President's happiness at the time of the Sewol ferry incident, and is a subject of public review. However, the expression used by Defendant 1, in particular, "the President was an individual with narcotics" cannot be seen as falling under a scarcity or a scarcity, and it cannot be deemed as falling under a malicious and extremely scarcityous expression in light of the negative image of narcotics in our society. Thus, the statement of this case constitutes an area in which it cannot be protected as freedom of expression. Despite the whole context of the statement of this case, the defendant stated that "the victim used narcotics or Stockholms around the Sewol ferry, and caused it to be unable to perform his duties for seven hours after the Sewol ferry." The statement of this case constitutes a false fact, and there is no reasonable doubt that Defendant 1 is being aware of the falsity of the crime of defamation, and there is no reasonable doubt that the statement of this case constitutes a crime of defamation under Article 30 of the Criminal Act.

E. Supreme Court Decision

However, we cannot accept the above determination by the court below.

(1) According to the record, the following facts are revealed.

Defendant 1, as co-chairperson of the National Countermeasures Council for the Sewol ferry and the standing operating committee members of the April 16th, 2014 as co-chairperson and co-chairperson of the National Countermeasures Council for the April 16th of the Sewol ferry, has continuously been holding a large-scale assembly or demonstration on several occasions from April 16, 2014 to the time of the instant speech and demonstration on several occasions, and asserting that he/she will be punished for the responsible person.

On April 16, 2014, the victim, who was the President, visited the Central Disaster and Safety Countermeasure Headquarters at around 17:15 on April 16, 2014, was constantly controversial about the victim’s specific dynamics for seven hours at the time of the instant speech, since the issue was raised in the National Assembly around July 2014, and there was no specific support for the narcotics and Stockholm suspicion at the time of the instant speech.

On April 16, 2015, and April 18, 2015, Defendant 1, a group of April 16, 2016, including Defendant 1, without reporting an assembly or demonstration, held a memorial event, etc., at least 10,00 persons were present at the memorial event and thereafter held a large-scale assembly or demonstration, leading to physical conflict with the police. The police, from June 19, 2015, seized and searched the police’s joint office, etc. From June 22, 2015. Defendant 1 criticized the police’s response method and search and seizure of the police’s response to the assembly or demonstration related to the NIS as of June 22, 2015, and made a statement in the instant case during which he/she made the statement during that process.

Defendant 1’s assertion that the search and seizure of Defendants 1 and 4/16’s joint offices, etc. is a reference to the fact that ① the search and seizure of Defendant 1 and 4/16’s joint offices, ② the provision against the police using the caps and sprinks during the Sewol ferry-related assembly or demonstration, ③ the search and seizure of the office even if the evidence was already collected at the assembly or demonstration site, ④ the instant speech, ⑤ the Enforcement Decree of the Enforcement Decree in order to reveal the truth of the Sewol ferry, ⑤ the Special Committee on the Truth of the Truth of the Truth of the Truth of the Truth of the Truth of the Truth of the Truth of the State, and 6) the declaration that the office’s joint and several solidarity would be consistent.

(2) Examining the above facts in light of the legal principles as seen earlier, it is difficult to readily conclude that Defendant 1 expressed the suspicion of widely spreading among three cases in the process of expressing the opinions on the illegality of search and seizure of Defendant 1 and 4/16 joint offices and on the necessity of disclosing the victim’s happiness, and that “the victim did not perform his/her duties on the grounds that he/she was narcotics or she was in the Boxeths.” Defendant 1 expressed a specific fact. Defendant 1 expressed an expressive act by means of raising suspicion against public interest related to public figures, and thus, it cannot be deemed that Defendant 1’s act of expression cannot be deemed as a malicious or extremely rush attack against the victim, who is the President, and thus, cannot be deemed as having lost reasonableness as a crime of defamation. The reasons are as follows.

Defendant 1, without using a decent expression at all, presented suspicions between the three offices that the people raise, and expressed his opinion to reveal that he was unaware of the facts, such as “I am old,” and “I am the same as a chimney.” The expression “I am tells that I want to confirm,” and that I will see it. In light of the context of the statement in this case through the overall contents of the reporters’ conference, Defendant 1’s expression that “I will be able to search and seizure of the audience, if you want to confirm it,” while speaking in this case in the process of criticisming the police’s search and seizure of the 4/16 joint office, etc., the expression “I am this suspicion about the victim, and that I am see that I am emphasize the illegality of the police’s search and seizure?” It is difficult to see that Defendant 1 is an expression to emphasize that Defendant 1 presented.

Inasmuch as the instant speech is not clearly clear in which the President has given no appropriate response in a national disaster situation and for a considerable period of time, it is necessary to clarify the specific criminal conduct in the past.” In light of the overall purport of the statement, it constitutes an expression that criticizes whether the duties of the President, who is a State agency, are appropriate for the performance of duties of the President, and thus constitutes an expression that should be widely guaranteed the freedom of expression.

At the time of the instant speech, the victim’s remarks were socially controversial at the time of the victim’s Sewol ferry call, and the facts that Defendant 1 tried to clarify that Defendant 1 was golded in the instant speech are not “whether the victim was an individual with narcotics or Switzerland,” but “whether the victim was carrying out the state affairs properly at the time of the Sewol ferry call.” Therefore, the instant speech is highly related to public interest. Although there were no specific circumstances at the time, various suspicions, including narcotics and Bos, including narcotics, and Bos, were widely spread among three times prior to the instant speech, but it is difficult to view that Defendant 1’s remarks were a new suspicion. Moreover, since Defendant 1 did not have any special position to know about the victim’s conduct for seven hours at the time of the instant speech, it may be deemed that the victim’s speech was not accepted as the fact-finding. Therefore, it is difficult to evaluate Defendant 1’s social evaluation of the victim’s speech to the extent that it undermines the victim’s social evaluation.

Defendant 1, as an opportunity to conduct a critical check on the search and seizure, emphasizes the issue that has been continuously raised once again, and it is difficult to view that Defendant 1 had made a statement or made a statement in this case to reveal the facts that the victim had made narcotics or Gunxols by pretending suspicions.

The expression “narcotics and Stockholm” can only be deemed as a malicious and aggressive expression against the victim’s individual in light of the background and context of the above-mentioned specific remarks. However, in light of the background and context of the statement, it is difficult to readily conclude that the term “the instant expression is an attack that has widely spreaded and used the suspicion, and that is, is an attack that has substantially lost reasonableness.”

(3) Nevertheless, the lower court found the Defendant guilty of this part of the facts charged on the ground that the instant speech constitutes a statement of facts beyond the suspicion and a malicious and extremely rush expression against the victim, thereby significantly losing reasonableness. In so determining, the lower court erred by misapprehending the legal doctrine on the determination of illegality of the crime of defamation against public figures, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this part is with merit.

2. Determination on the remaining grounds of appeal by the Defendants

Of the facts charged in the instant case, the lower court convicted Defendants of the violation of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) due to the organizing of an assembly or demonstration not reported on April 16, 2015, and Defendant 1 on April 18, 2015. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on Article 15 of the Assembly and Demonstration Act, joint principal offenders, etc.

3. Judgment on the grounds of appeal by the prosecutor

On July 24, 2014, the lower court deemed that there was no proof of crime regarding the violation of the Act due to the Defendants’ failure to host the unreported demonstration and the failure to perform the dispersion order, and found the Defendants not guilty of the former, and acquitted the latter. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules,

4. Scope of reversal

As seen above, among the judgment below, the part of defamation against Defendant 1 should be reversed, and the remaining guilty part against Defendant 1, who has concurrent relation with the above reversed part under the former part of Article 37 of the Criminal Act, should be also sentenced to a single punishment. As such, among the convicted parts that are reversed together, the part of the judgment of conviction as to the part of the violation of the Act due to the event of failure to report on July 24, 2014, which is the primary charge with the same body as the part of the offense of violation of the Act, which is the primary charge that exceeds the scope of report on July 24, 2014, should also be reversed.

5. Conclusion

Of the judgment of the court below, the part on conviction against Defendant 1 (including the part on innocence) is reversed, and this part of the case is remanded to the court below for a new trial and determination. Defendant 2’s appeal and prosecutor’s remaining appeals are 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)