2016Da254047 Compensation (as referred to in this paragraph)

1. A;

2. B

1. C

2. A stock company D;

Seoul High Court Decision 2015Na2069240 Decided September 2, 2016

May 30, 2019:

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. As to the defamation portion related to Plaintiff B’s “6.25” and “competing country”, the lower court, on the grounds as indicated in its reasoning, determined that Defendant C’s liability for damages was recognized on the grounds that: (a) Defendant C’s statement to the effect that Plaintiff C’s 6.25 War is deemed to be North Korea; or (b) Defendant D Co., Ltd. (hereinafter “Defendant D”)’s broadcast was made by Defendant D (hereinafter “Defendant D”) to the effect that Defendant C’s 6.25 War was North Korea; and (c) there was no reasonable ground to believe that it was true.

Examining the record in accordance with the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on expression of opinions, statement of facts, falsity of alleged facts, or defamation.

B. As to the part concerning defamation regarding the plaintiffs' pro-North Korea's "pro-North Korea", the court below accepted the judgment of the court of first instance, and explained that the defendant C refers to the plaintiffs' "pro-North Korea personnel," which means that the defendant C has a tendency to deny the identity of the Republic of Korea and praise North Korea. It stated facts, and the materials submitted constitute false facts because they cannot be viewed as related to the plaintiffs' "pro-North Korea activities," and it is not reasonable to believe that the materials were true. (2) It should be recognized that the reputation was damaged by indicating facts to recognize the responsibility for defamation caused by the expressive act. It refers to an objective social reputation. It cannot be readily concluded that the defendant C merely referred to as "pro-North Korea's "pro-North Korea or pro-North Korea's "pro-North Korea personnel," and it should be recognized that the materials submitted were not related to the plaintiffs' "pro-North Korea activities," and that there was no reasonable reason to believe that the reputation was damaged by such expressive act.

Determination of whether an expressive act constitutes defamation should take into account not only the expression used, but also the speaker and the other party, who is and is in a position. ‘Mali', ‘provoking', ‘provokingking North Korea', or ‘provoking North Korea', cannot be readily concluded as defamation solely based on the expression, and determination of whether an expressive act constitutes defamation should be made in consideration of the context where such expression was made.

Considering the status of the victim is reflected in the so-called public theory. In the case of a full-scale public figure of the head of the public theory, the criticism should be borne, and such criticism should be overcome through piracy and re-bordembling. The position or attitude of the speaker may have an impact on the determination of whether the other party’s reputation was damaged by his speech.

In a democratic country, through the free formation and transmission of public opinion, the majority opinion should be gathered to create and maintain democratic political order. As such, the freedom of expression and, in particular, the freedom of expression should be guaranteed to the maximum extent possible as an important constitutional right. However, in a case where the two legal interests conflict between the guarantee of freedom of expression and the protection of personal rights, the scope and method of regulation 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. The expression of critical opinion to others cannot be deemed unlawful unless there are extremely exceptional circumstances (see Supreme Court en banc Decision 2014Da61654, Oct. 10, 2018). (3) Examining the record in accordance with the foregoing legal doctrine, the following is determined as follows.

At the time of the instant broadcast, Plaintiff B was officially recognized as a candidate for president as a representative of the National Assembly member and public party, and it is sufficient to deem that Plaintiff A was in a position equivalent to that of official seal in light of social activity experience between him and his husband. As such, a wide range of problem raising about the Plaintiffs’ political ideology or suspicion need to be permitted.

The question or suspicion of the plaintiffs' political ideology seems to have already been made public interest through several media reports, and the freedom of expression on public concerns should be guaranteed as constitutional rights to the maximum extent possible.

In full view of these facts, Defendant C expressed the Plaintiffs as “pro-North Korea” and broadcasted them by Defendant D with the aim of raising and criticisming the Plaintiffs’ political behaviors and attitudes that have been committed by the Plaintiffs as public figures, and appears to be merely an expression of opinion, rather than an expression of fact. Nevertheless, the lower court recognized the Defendants’ liability for damages on the ground that it constitutes defamation publicly alleged the facts, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine on defamation and statement of fact.

C. As to the part on the infringement of the portrait rights against Plaintiff A (1) the lower court determined that the illegality is not dismissed, in light of the following: (a) it is difficult to view that Plaintiff A was an attorney-at-law, a social movement, and the husband of a famous political person; (b) the content and degree of exposure to the broadcast of this case; (c) there is no urgent circumstance to the extent that it is difficult to obtain consent from Plaintiff A with respect to the use of pictures; (d) Plaintiff A did not engage in an activity premised on public exposure; and (e) there is no ground to view that Plaintiff A was permitted to use his portrait as a general rule, since the private interest infringed upon by the exposure of Plaintiff A was considerably larger than the public interest that can be achieved thereby.

(2) Even if the disclosure of a matter related to an individual’s private life infringes on the privacy, it constitutes a matter of public’s legitimate interest in connection with the public interest, disclosure is for the public interest, and the method of expression is not unreasonable (see Supreme Court Decision 2012Da31628, Jun. 27, 2013).

In a case where there is a conflict of interests between the two directions surrounding the act of infringement of portrait rights or privacy, the final illegality of the said act of infringement is determined through a balancing of interests by comprehensively taking into account the circumstances in a specific case. In the course of balancing of interests, first, the elements of consideration belonging to the area of infringement include the content and importance of the profit to be achieved by the act of infringement, the necessity and effectiveness of the act of infringement, the supplement and urgency of the act of infringement, and the reasonableness of the method of infringement. Second, the factors of consideration belonging to the area of damage benefits include the content, gravity and degree of damage inflicted on the victim due to the act of infringement, and the protection of the damaged interest (see Supreme Court Decision 2004Da16280, Mar. 13, 206). (3) In a democratic country, the majority opinion should be gathered through the free formation and delivery of public opinion to create and maintain democratic political order, and in particular, the freedom of expression to the public, as an important right to freedom of expression in the public, and the public interest or public status of the broadcasting of the Plaintiff.

In light of the above legal principles, the freedom of expression held by the Defendants in this case is related to public concerns, and its importance and necessity are recognized. The supplement of the infringement and the reasonableness of the method of infringement are recognized by using photographs of public activities already disclosed through newspapers or broadcasts. In light of the status as the Plaintiff A’s official seal, the above pictures cannot be deemed as more or more than the public interest that can be achieved by being exposed to broadcasting or the protection value of the damaged interest.

Therefore, even if Plaintiff A’s photograph was exposed through the instant broadcast and thus Plaintiff A’s portrait rights were infringed, it should be deemed unlawful. Nevertheless, the judgment of the court below that recognized Defendants’ liability for damages on the ground that the illegality exists, thereby adversely affecting the conclusion of the judgment by misapprehending the legal principles on the judgment on the illegality of the infringement of portrait rights.

2. On the grounds of appeal by Defendant D, based on its stated reasoning, the lower court determined that Defendant D was liable for damages arising from defamation jointly with Defendant C, on the ground that Defendant C, as the principal agent of the instant broadcast, was aware of the content of Defendant C’s speech in advance.

Examining the record, the lower court did not err by misapprehending the legal doctrine regarding the establishment of liability for damages.

3. Scope of reversal

The lower court calculated the amount of damages by the Defendants, including the portion of defamation related to Plaintiff B’s 6.25 and the part of the Plaintiff’s defamation related to “Nan country” and the part of the Plaintiff’s infringement of the portrait rights against all of the Plaintiffs, and there is no evidence to specify the amount of damages arising from defamation and infringement of portrait rights. Therefore, the lower court’s erroneous judgment that erred by misapprehending the legal principles on defamation related to “pro-North Korea” and infringement of portrait rights affected the judgment on calculation of the total amount of damages that the Defendants should compensate for. Therefore, the part of the lower judgment against the Defendants should be reversed in its entirety.

4. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of 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 Jo Hee-de

Justices Kim Jae-in

Justices Lee Jae-hwan