2015Do8975 Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Examples and Damage)

A

Defendant

Law Firm AG

Attorney AH, AI, AJ, AK

Law Firm B

Attorney AL, C, and AM

Seoul Western District Court Decision 20141762 Decided May 29, 2015

September 15, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. In order to establish the crime of defamation by a false statement of facts under Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. with respect to Article 1 of the Reasons for Appeal, the offender must publicly indicate the fact, and the fact should have been falsely evaluated as a false fact. If the important part here is consistent with the objective fact, even if there is a little difference from the truth or somewhat exaggerated expression, it cannot be viewed as a false fact. However, in determining whether there is a false fact, it should be determined whether the part that is not consistent with objective fact is an important part by examining the purport of the whole of the alleged fact. In addition, "the purpose of slandering a person" under Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. requires the intention or purpose of harm. Whether there is a purpose of slandering a person should be compared to the expression itself, such as the content and nature of the relevant statement, the scope of the other party to which the relevant fact was published, the method of expression itself, and the degree of harm or damage (see, etc.).

The lower court upheld the first instance judgment convicting the Defendant of the instant facts charged on the ground that, in full view of the facts and circumstances acknowledged by the evidence employed, the content of the instant printed matter was not consistent with the objective facts and was false, the Defendant recognized that its content was false, and that there was a purpose of slandering the victims.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, misapprehending the legal doctrine on the crime of violation of the Act on Promotion

2. Article 310 of the Criminal Act concerning the denial of illegality cannot be applied to defamation or false facts through an information and communications network where the purpose of slandering the second ground of appeal is recognized (see, e.g., Supreme Court Decision 2010Do14037, Feb. 28, 2013).

The court below held that the purpose of slandering the victims is recognized, and that Article 310 of the Criminal Act cannot be applied to the facts charged in this case is justifiable. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on Article 3

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Kim Yong-deok

The Chief Justice Park Jae-young