[1] The standards for determining whether a film is liable for defamation, which is the actual model of a person or case

[2] Criteria to determine whether the contents of a film contain contents that harm a specific person’s reputation

[3] In a case where defamation is not established against the contents of a film, whether a separate liability for defamation can be held on the sole basis of the advertisement or publicity itself (negative in principle)

[1] Even in a case where a film, which is a real model of figures or cases, has committed an act of impairing an individual’s reputation by pointing out false facts, if it is a matter of public interest and its purpose is for the benefit of the public, it shall not be held liable for tort against the actor. In determining whether there are reasonable grounds, it shall be determined by taking into account various circumstances, such as the contents of the alleged facts, the certainty of the materials believed to be true, the method of expression, the degree of damage to the victim, etc. In particular, if the stated facts are historical facts, the freedom of inquiry or expression of historical facts rather than the deceased or their bereaved family members should be protected, and it is not easy to confirm the truth due to objective materials to confirm the truth, and the fact that it is not easy to find the truth due to the limitations of objective materials to confirm the truth, and it is also necessary to see the historical and malicious contents of the film production in the commercial area that is planned to be a commercial film with the general public, and it is also necessary to see the historical and malicious contents of the film in order.

[2] Whether the contents of a film contain the contents that harm a specific person’s reputation should be determined on the basis of the objective contents of the film in question, and on the premise that the general public’s public’s contact with the film with an ordinary level of care, comprehensively considering the overall flow of the film contents, stories and screen composition methods, the ordinary meaning of the film used, and the connection method, etc., the overall impression of the film contents to the audience should also be determined on the basis of the determination. Moreover, the social trend, etc. that is the subject or background of the film in question should also be considered.

[3] Even if a film is a real model of a person or a historical case, advertisement and publicity is ordinarily accompanied in order to attract public interest in the case of a commercial film and spread it. Even in the case where a film expresses false facts and damages an individual’s reputation, if an actor believed it as true and he/she cannot be held liable for tort due to defamation, barring special circumstances, such as where the content of the advertisement and publicity goes beyond false facts described in the film, it cannot be deemed that the act of publicity constitutes tort of defamation separately. Furthermore, even if the film advertised and publicity as truth without specifying the specific part of its content, barring any special circumstances, it should be understood that all of its contents should not be considered as true, as a whole, and based on historical facts, it should be understood to the effect that it reflected to the greatest extent possible the factual relations confirmed in harmony with the extreme tool.

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act / [3] Article 750 of the Civil Act

[1] Supreme Court Decision 97Da19038 decided Feb. 27, 1998 (Gong1998Sang, 865), Supreme Court Decision 2007Do8411 decided Apr. 29, 2010 (Gong2010Sang, 1059)

Plaintiff 1 and 5 others (Law Firm Apex, Attorneys Lee Sang-hoon, Counsel for the plaintiff-appellant)

Sinma Services Co., Ltd. and two others (Law Firm Shin & Yang, Attorneys Kim Sung-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Na68532 decided Dec. 6, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the violation of the rules of evidence regarding the origin or career of a trainee

The allegation in this part of the grounds of appeal is nothing more than the purport of disputing the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the lower court, and therefore cannot be a legitimate ground of appeal.

2. As to the grounds for rejecting illegality of defamation

The freedom of arts guaranteed by Article 22 of the Constitution of the Republic of Korea that provides that “all citizens shall enjoy the freedom of learning and arts” includes the freedom of artistic creative activities, including the right to decide voluntarily on creative materials, creative forms, and creative processes, and the freedom of artistic expression that can exhibit, perform, and distribute to the general public. However, such freedom of arts is not unlimited fundamental rights, and thus, it does not infringe another person’s rights and honor. Therefore, if a film modeled on a person’s property or case impairs the reputation of a person modeled by distorted historical facts by pointing out false facts, it may be held liable for tort liability, etc. due to defamation against the person (see Supreme Court Decision 2007Do8411, Apr. 29, 2010).

However, even in a case where a film modeled on a person’s property or a case actually injures the reputation of an individual by pointing out false facts, if its purpose is for the public interest, it shall not be held liable for tort against the person who committed the act when it is believed to be true, or there are reasonable grounds to believe such fact. In determining whether there are reasonable grounds, it shall be determined by taking into account various circumstances, such as the contents of the alleged fact, the certainty of the materials believed to be true, the method of expression, the degree of damage to the victim, etc. In particular, if the alleged fact is historical, it shall be more protected than the honor of the deceased or his bereaved family, and it is not easy to confirm the truth due to the limitations of objective materials to confirm the truth, and it is also necessary to see that the contents of the commercial film production are inconsistent with the historical fact and the fact that it is not permissible to see the general entertainment area, even if it is not permissible to see the historical fact and the fact that it is not permissible to see the general entertainment area.

According to the reasoning of the judgment below, it is probable to view that the Defendants expressed the deceased’s or the plaintiffs’ reputation as murder, death penalty, or deceased’s stige regarding all the training materials including the deceased, but the circumstances indicated in its holding are as follows: “the number of special crimes or crimes detained under air force control,” “military special crimes,” “the number of military inmates detained in prison,” and “the military unit of the deceased’s stige,” and “the stige of the deceased’s stige,” and “the stige of the deceased’s stige,” which are not clearly mentioned in the following facts: (a) if the Defendants were to have been aware of the historical facts of the deceased’s stige or the deceased’s stige who had never been aware of the fact that the Defendants had been using the stige or stige’s personal rights before the stige of this case’s film production, etc., and (b) if so, the Defendants were not aware of the historical facts that the Defendants’ s were not exposed.

Examining the reasoning of the judgment below in light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to defamation.

3. As to the illegality of the face-to-face pointing “the face-to-face”

Whether the contents of a film contain any content that impairs a specific person’s reputation should be determined on the basis of the objective contents of the film in question, and on the premise that the general public’s audience contact with a film with an ordinary level of care, comprehensively taking into account the overall flow of the film contents, stories and screen composition methods, the ordinary meaning of the film used, and the connection method, etc., and the overall impression of the film contents to the audience should also be determined on the basis of the determination. Moreover, the social flow, etc., which is a wider subject or background of the film contained, should also be considered.

According to the reasoning of the judgment below, the court below determined as follows: (a) in the film of this case, the training soldiers were exposed to three times to the North Korean military, and the training soldiers were aware of the special unit members for the purpose of North Korea’s propagation, namely, training soldiers, and were aware of the North Korean military for that purpose; (b) the film of this case did not indicate that the singing was a “satis”, which is the North Korean military personnel; (c) it seems difficult for general spectators to immediately understand that the above singing was North Korean military personnel; (d) there was no other friendly appearance for the North Korean system; and (e) there was no other scene where the training soldiers appear in the film of this case; (e) the exercise soldiers did not object to the duty assigned in the opposite form, namely, their desire to live in the society; and (e) the film of this case did not constitute an “satisfication or an act of publicity,” which does not constitute an act of publicity or a replacement of the plaintiffs.

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to defamation or violation of the rules of evidence.

4. As to the illegality of beginning prevention and advertising and publicity

Even if a film is a real model of a person or a historical case, advertising and publicity is ordinarily accompanied in order to attract public interest in the case of a commercial film and spread it. Even in cases where a film damages an individual’s reputation by expressing false facts, if an actor believed it as true and has considerable reason to believe it, and thus, cannot be held liable for tort due to defamation, barring special circumstances, such as where the content of the advertisement and publicity goes beyond the false fact described in the film, it cannot be deemed that the act of advertising and publicity constitutes a tort of defamation separately. Furthermore, even if an advertisement and publicity was made without indicating a specific part of the content in the commercial film, barring any special circumstances, it should be understood to the effect that all of the contents of the film should not be deemed as true, and that it was based on the overall historical facts, and that it was reflected to the utmost extent in harmony with the extreme tool.

According to the reasoning of the judgment below, the court below held that the defendants cannot be held liable for tort due to defamation on the ground that the contents of the film of this case did not constitute defamation on the part of the defendants, as long as the contents of the film of this case did not constitute defamation on the part of the defendants.

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to defamation.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)