[1] The meaning of and criteria for determining “statement of fact” in the crime of defamation

[2] In a case where Defendants, including a broadcasting company producer, were indicted on charges of impairing their reputation by pointing out false information that the representative of the negotiation group of so-called “Korea-U.S. beef import negotiation” through a specific program program and the competent minister failed to properly grasp the U.S. beef status, the case affirming the judgment below holding that this part of the report does not constitute a “public allegation of fact” in the crime of defamation

[3] The criteria for determining whether a media report on a public issue constitutes a crime of defamation, and whether a media report on a public issue constitutes a crime of defamation against a public official or individual involved in a media report related to the government's decision-making or performance of its duties (negative with qualification)

[4] In a case where Defendants, including a broadcasting company producer, were indicted on charges of impairing their reputation by neglecting their qualities and job performance attitude by expressing the representative of the so-called “Korea-U.S. Beef Import Negotiations” through a broadcast program and the competent minister’s expression to the effect that the negotiation was concluded significantly, the case affirming the judgment below that part of the content of the report constitutes a false statement, but it is difficult to acknowledge the Defendants’ intentional act of defamation

[5] In a case where Defendants, including a broadcasting company producer, were prosecuted for interference with the business of importing and selling U.S. beef by spreading false information to the effect that U.S. beef is highly dangerous food for a high risk of Mad Cow Disease through a broadcast program, the case affirming the judgment below holding the Defendants not guilty of interference with business

[1] In the crime of defamation, the term “statement of fact” refers to a report or statement of a specific past or present fact in time and space as a substitute for an expression of opinion, the subject matter of which is a value judgment or evaluation, and the content of the expression refers to what can be proved by evidence. In distinguishing between a report or statement from a fact or an opinion, the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression at issue was used, the social situation in which the expression was made, etc. shall be considered.

[2] The case affirming the judgment below holding that in case where Defendants, including a broadcasting company producer, were indicted on charges of impairing their reputation by pointing out false information that the representative of the negotiating group of “the Second U.S. Technical Consultation for Import of U.S. Beef” (hereinafter “Korea-U.S. Beef”) and the competent minister failed to properly grasp the actual state of U.S. beef,” based on a broadcast program report, it does not constitute a “public allegation of facts” as referred to in the crime of defamation in light of the legal principles on the factual presentation of defamation and the Supreme Court en banc Decision 2009Da52649 Decided September 2, 2011, the government’s broadcast report related to ascertaining the actual state of U.S. beef beef at the negotiating group, not a statement of specific facts that the government did not know about the actual state of U.S. beef slaughter system as necessary for the negotiations on import sanitary requirements of U.S. beef and thus, it did not constitute a “public allegation of facts” in the crime of defamation.

[3] In a case where defamation caused by a press report is a matter of public interest, whether the report pertains to a matter of public interest or private interest, whether the report concerns a matter of public interest or purely private interest, and whether the report contributes to the formation of public opinion or public debate as to a matter of public interest or social character, which the citizen should objectively know, and whether it contributes to the formation of public opinion or public debate. If the expression pertains to a matter of private interest, the person’s personality right, which is protection of reputation, should be given priority over the freedom of the press. However, if the expression pertains to a matter of public and social meaning, the evaluation should be made differently, and the restriction on the freedom of the press should be mitigated. In particular, if the decision-making or public opinion of the government or a government agency is related to a matter of public and social meaning, it can be done normally when the freedom of press report is sufficiently guaranteed, and the government or a government agency can not be evaluated as a public official in bad faith or public official’s ability to exercise its duty, as long as the contents of the report or public official decision-making can be considerably affected.

[4] The case affirming the judgment below which held that in case where Defendants, including a broadcasting company producer, were indicted on charges of impairing their reputation by neglecting their qualities and public service performance attitude, such as expressing that the representative of the negotiation group of “the Second U.S. Technical Consultation for Import of U.S. Beef (S. Beef) of “The Second U.S. Beef”)” and the competent minister concluded negotiations at a close speed, and expressed that the risks of human optical disease (vCJD) were put into danger, etc., through a broadcast program, although some of the contents of the reports constitute a false representation of objective facts, the above broadcast reports constitute a statement of false facts, but they constitute a statement of false facts, but are subject to public nature and social nature that can contribute to the formation of public opinion or public debate on the government policies therefor, and the contents of the broadcast reports recognized as a statement of false facts are related to the risk of Mad Cow disease of U.S. beef, and it cannot be viewed as having direct connection with the reputation of the victims, as well as intentional or considerable harm to the victims

[5] In a case where Defendants, including a broadcasting company producer, were indicted for interference with the business of an importer and seller of U.S. beef by spreading false information to the effect that U.S. beef is highly dangerous in risk of Mad Cow Disease through a specific broadcast program and that Koreans are extremely vulnerable to Mad Cow Disease, the case affirming the judgment below holding that the Defendants cannot be deemed to have had intention to interfere with the business on the premise that the overall purpose and contents of the broadcast report pointed out food safety issues of U.S. beef and the issues of the import negotiation of beef, and criticizes the government’s attitude related to the negotiation.

[1] Article 307 of the Criminal Code / [2] Article 307 (2) of the Criminal Code / [3] Article 21 (1) and (4) of the Constitution, Article 307 of the Criminal Code / [4] Article 307 (2) of the Criminal Code, Article 325 of the Criminal Procedure Act / [5] Article 314 (1) of the Criminal Code, Article 325 of the Criminal Procedure

[1] Supreme Court Decision 96Do1741 delivered on November 22, 1996 (Gong1997Sang, 137), Supreme Court Decision 97Do2956 delivered on March 24, 1998 (Gong1998Sang, 1248), Supreme Court Decision 2007Do1220 Delivered on October 9, 2008 (Gong2008Ha, 1561), Supreme Court Decision 2006Do7915 Delivered on November 13, 2008 / [3] Constitutional Court Decision 97Hun-Ma265 Delivered on June 24, 199 (Hun-Ga36, 573), Supreme Court Decision 200Da37529 delivered on June 22, 2002, Supreme Court Decision 200Da3753729 delivered on March 24, 2005)

Defendant 1 and four others

Prosecutor

Law Firm Shin-soo, Attorneys Kim-type et al.

Seoul Central District Court Decision 2010No380 Decided December 2, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on defamation

A. As to the ground of appeal No. 1 (Ground of appeal No. 1)

According to the reasoning of the judgment of the court below, the court below did not make a judgment on the crime of guilt which is entirely different from the facts charged by the prosecutor, but did not make a judgment on the facts charged by the prosecutor by extracting only the facts admitted by evidence from among the facts charged by the prosecutor, and made a judgment on whether to apply the relevant legal principles based on the facts. Thus, the court below did not err in the misapprehension of the principle of no accusation as

B. As to the ground of appeal No. 2 (Judgment of the court below and the ground for appeal No. 2)

According to the reasoning of the judgment below, the court below confirmed that there are facts different from objective facts about the operator's statement, interview contents, etc. indicated as separate items in the facts charged through the modification of indictment, and determined whether the contents of the entire broadcast report including such detailed contents are false or not. Thus, the court below did not err in the misapprehension of judgment, etc. as otherwise alleged in the ground of appeal.

C. As to the grounds of appeal Nos. 3 and 4 (claim on Report on Non-Indicted Party’s Death and Import of Certain Hazardous Substances)

This part of the ground of appeal is without merit to find facts which belong to the exclusive authority of the fact-finding court and does not constitute legitimate grounds of appeal. In addition, in light of the reasoning of the lower judgment, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules as otherwise alleged in the ground of appeal

D. As to the grounds of appeal No. 5 (In relation to the government negotiation team's reporting on ascertaining the actual status of U.S. beef products)

(1) In the crime of defamation, a statement of fact is a concept substituted by an expression of opinion, the expression of which is a value judgment or evaluation, and refers to a report or statement of specific past or present facts in time and space, and its contents can be proven by evidence. The distinction between whether a report or statement is a fact or an opinion shall be made by taking into account the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression in question is used, the social situation in which the expression was made (see, e.g., Supreme Court Decisions 96Do1741, Nov. 22, 1996; 97Do2956, Mar. 24, 1998).

(2) Supreme Court en banc Decision 2009Da52649 Decided September 2, 201, rendered the following judgments as to the broadcast reports in this part.

This part of the broadcast report used a factual assertion, such as the "whether there is a material fact" among its contents. However, it appears that the target is not a specific place, such as a specific slaughterhouse of the United States, but an abstract "actual condition of the U.S. slaughter System", and that it criticizes our government's attitude by using a multilateral and vague expression "whether it has made an effort to see," and in particular, in light of the overall context of the broadcast of this case related to the broadcast report of this part, it seems that the broadcast report of this part referred by Defendant 3PD referred to above, stating that "the government has negotiated the safety of the people with the top priority and that U.S. beef was safe 9.9% safe. However, in negotiations, it seems questionable whether it has made any effort to protect the safety of the people or not, or not, any wrong expression with our government."

Therefore, in full view of the overall composition of the broadcast of this case related to the broadcast of this part, the language and expression methods used, and the context before and after the broadcast report of this part, on the premise that the general viewers are in contact with the report at a common level, it is reasonable to view that the broadcast report of this part did not indicate specific facts that the government did not properly know the actual state of the U.S. slaughter system as necessary for the negotiation of import sanitary requirements for U.S. beef, not for the broadcast report of this part.

(3) In light of the aforementioned legal principles and the contents of the Supreme Court en banc decision, etc., it is reasonable that the court below determined that the broadcast report does not constitute a statement of facts as referred to in the crime of defamation in light of criticism or presentation of opinions. There is no error of law by misapprehending the legal principles as to the factual time in the crime of defamation, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

E. As to the grounds of appeal Nos. 6 and 7 (as to the relation between the news report and the victim and the intentional defamation)

In the event of defamation caused by a press report, the following should be considered: (a) whether the victim of the press report is a public figure or a private figure; (b) whether the report pertains to a pure private matter; and (c) whether the report objectively contributes to the formation of public opinion or public debate as to a matter of public nature or sociality; and (d) whether the report pertains to a matter of public concern and a matter of private nature. If the expression pertains to a matter of private nature, the personal right to protection of reputation may take precedence over the freedom of the press; (c) if the expression pertains to a matter of public and social meaning, the limitation on the freedom of the press should be mitigated (see, e.g., Constitutional Court en banc Decision 97Hun-Ma265, Jun. 24, 199; 200Da37524, Jan. 22, 2002; and (d) if the expression pertains to a matter of public official’s duty, it shall be deemed that the public official’s exercise of his/her duty can be considerably criticized or public official’s duty.

The lower court determined that the Defendants cannot be held liable for defamation for the following reasons while some of the contents of the instant broadcast reports produced by the Defendants constituted a statement of false facts that are different from the objective facts. In other words, the lower court: (a) premised on the premise that the overall purport and contents of the instant broadcast were criticized by the Government of the Republic of Korea to the effect that, by pointing out the issues of the safety of U.S. beef food and the issues of negotiations on imports of beef of this case, the Government of the Republic of Korea was wrong in negotiating them without taking sufficient time into consideration; and (b) based on such premise, considering the public nature and social nature, which can contribute to the formation of public opinion or discussion on the public policy of the people's drinking and the government policies, the lower court determined that the examination criteria should be different from those on the private domains in examining the establishment of the crime of defamation by the broadcast report of this case. Furthermore, the lower court determined that the content of the broadcast report acknowledged as a statement of false facts was related to the risk of the U.S. beef, which is directly related to the victims, and that it did not have any harm or considerable reputation. victims.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the relation between press reports and victims and the recognition criteria of intentional defamation, or in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

F. As to the ground of appeal No. 8 (Ground of appeal as to the existence of grounds for dismissal of illegality)

According to the reasoning of the judgment below, the court below held that the press report in question is the subject of public interest and is not a malicious or considerable attack against the victims who are public officials, and that such press report should be widely recognized. In light of the original legal principles, the defendants did not have the intent to defame the victims, and the defendants' act did not constitute the elements of defamation but constitutes the element of defamation, and therefore, it does not constitute a case where the illegality is dismissed. Thus, the court below's ground of appeal pointing out that there was an error of law in the misapprehension of legal principles as to the existence of the grounds of illegality rejection in the judgment below is without merit.

2. As to the ground of appeal on obstruction of business

The lower court: (a) premised on the premise that the overall purport and content of the broadcast of this case pointed out the issue of food safety of U.S. beef and the issue of the import negotiation of the beef of this case and criticized the government’s attitude in relation to the conclusion of negotiations; (b) determined that the Defendants did not have a criminal intent of spreading false information through the broadcast of this case to interfere with the work of the victims of the judgment that imported and sold U.S. beef

Examining the relevant evidence in light of the reasoning of the judgment below, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the intentional recognition criteria of the crime of interference with business, or in violation of the principle of free evaluation of evidence, which affected the conclusion of the judgment.

3. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)