[1] The meaning of "a statement of fact" under Article 61 (1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and the method of determining the facts

[2] The method of determining whether “the purpose of slandering people” under Article 61(1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is “the purpose of slandering people,” and the relation with the public interest

[3] In a case where a notice was posted on the Internet portal site’s knowledge search inquiry and answer bulletin board a subjective assessment that the result of sexual intercourse is not satisfactory, the case holding that it is difficult to deem that the “public allegation of the fact” was made for the purpose of “non-defluence” only if it was inconsistent with the expression

[1] The term "statement of fact" under Article 61 (1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007) means a report or statement of a specific past or present fact in time and space. The contents of the statement refer to a document that can be proved by evidence. The distinction between whether a statement is a fact or an opinion should be made by considering 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.

[2] "Purpose of slandering a person" under Article 61 (1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007) requires the intent or purpose of harm. The issue of whether a person is intended to defame a person is determined by considering all the circumstances about 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, etc., and the degree of infringement of reputation that may be damaged or damaged by the expression. At the same time, the degree of infringement of reputation that may be damaged or damaged by the expression is in conflict with the direction of the actor's subjective intention. Thus, in a case where a timely statement concerns public interest, it is reasonable to deem that the purpose of slandering a person's subjective intention is denied unless there are any special circumstances. The public interest includes not only the benefit of the State, society, other general public, but also a specific social group or its members, and if the motive or purpose of the offender is incidental to the public interest.

[3] In a case where a notice was posted on the Internet portal site’s knowledge search inquiry and answer bulletin board a subjective assessment of which the result of sexual intercourse is not satisfactory, the case holding that it is difficult to view that the expression as a whole was a purpose of slandering the public interest of providing information and opinions that are helpful for the decision-making of multiple Internet users taking into account the fact that sexual intercourse is conducted as a whole.

[1] Article 61 (1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007) (see current Article 70 (1)) / [2] Article 61 (1) (see current Article 70 (1)) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007) / [3] Article 61 (1) (see current Article 70 (1)) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007) (see current Article 70 (1))

[1] Supreme Court Decision 97Do2956 Decided March 24, 1998 (Gong1998Sang, 1248), Supreme Court Decision 2007Do1220 Decided October 9, 2008 (Gong2008Ha, 1561) / [2] Supreme Court Decision 2006Do648 Decided August 25, 2006, Supreme Court Decision 2006Do1538 Decided June 1, 2007, Supreme Court Decision 2008Do4740 Decided September 25, 2008 (Gong2008Ha, 1504)

Defendant

Defendant

Public-service Advocates's main right

Seoul Central District Court Decision 2008No1719 Decided September 11, 2008

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

We examine the grounds of appeal.

1. As to the ground of appeal on whether a fact is publicly alleged

The term "statement of fact", which is the constituent element of the crime of defamation under Article 61 (1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007, hereinafter "the Act of this case"), means the report or statement on the past or current facts in a specific time and space, and the contents of the statement can be proved by evidence. The determination shall be made by considering the ordinary meaning and usage of language, the possibility of proof, the context in which the language in question was used, the social situation in which the expression was used, etc. (see Supreme Court Decisions 97Do2956, Mar. 24, 1998; 2007Do1220, Oct. 9, 2008, etc.).

원심은 그 채택 증거를 종합하여, 피해자 공소외인이 운영하는 ‘ ○○’성형외과에서 턱부위 고주파시술을 받았다가 그 결과에 불만을 품은 피고인이 인터넷 포털사이트 네이버의 지식검색 질문·답변 게시판에 2007. 5. 2. 10:22경 “아.. 공소외인씨가 가슴전문이라.. 눈이랑 턱은 그렇게 망쳐놨구나... 몰랐네...”라는 글을, 같은 날 10:27경 “내 눈은 지방제거를 잘못 했다고... 모양도 이상하다고 다른 병원에서 그러던데... 인생 망쳤음... ㅠ.ㅠ”이라는 글을 각 게시한 사실을 인정한 다음, 위 각 표현물이 ‘피고인이 피해자로부터 눈, 턱을 수술받았으나 수술 후 결과가 좋지 못하다’, ‘피고인이 피해자 운영의 ○○성형외과에서 눈 수술을 받았으나 지방제거를 잘못하여 모양이 이상해졌고, 다른 병원에서도 모두 이를 인정한다’라는 취지의 피해자의 명예를 훼손할 만한 구체적인 사실을 적시한 것이라고 판단하였는바, 앞서 본 법리에 비추어 보면 위와 같은 원심의 판단은 정당한 것으로 받아들일 수 있고, 거기에 이 사건 법률 제61조 제1항 소정의 명예훼손죄의 구성요건요소인 ‘사실의 적시’에 관한 법리오해 등의 위법이 없다.

2. As to the ground of appeal on whether the purpose of slandering is infringed

"Purpose of slandering a person" under Article 61 (1) of the Act of this case requires an intention or purpose of a hazard. Whether a person has an objective of slandering a person is determined by considering the contents and nature of the relevant publicly alleged fact, the scope of the other party to whom the relevant fact was published, and the method of expression itself, etc. Meanwhile, the term "purpose of slandering a person" means the degree of infringement of reputation that may be damaged or damaged by such expression, etc., and at the same time, considering the degree of infringement of reputation that may be damaged or damaged by such expression. On the other hand, the term "purpose of slandering a person" is in conflict with that of an actor's subjective intent, as it requires an intention or purpose, and is related to public interest, unless there are any special circumstances, it is reasonable to deem that the purpose of slandering a person is denied. It includes not only the general interests of the State, society, and other general public, but also the interests and interests of a specific social group or its entire members, and if the principal motive or purpose of an actor is for public interest, it is difficult to be considered as an incidental purpose or motive.

The lower court determined that it was reasonable to view that the Defendant had a purpose of slandering the victim, in full view of the following: (a) taking into account all the circumstances regarding the expression itself, such as the content and nature of the aforementioned timely fact, the scope of the other party to which the publication was made, and the method of expression, etc.; and (b) comparing and enhancing the degree of reputation infringement that may be damaged by such expression; and (c) the Defendant consistently took into account the fact that the Defendant prepared the foregoing writing to make the victim reflect because the victim did not recognize his mistake even though the side effects have occurred consistently since the investigative agency.

However, we cannot agree with the above judgment of the court below for the following reasons.

According to the records, each of the above representations is posted in the form of a statement of opinion that can be reduced to the Internet users who have the function of sharing the opinion and information when asking questions. The motive is that when the Internet users respond to the question, the victim's sexual intercourse treatment ability should be reported and other damage cases should be prevented from being shared by the victim's experience and opinion. In light of the above legal principles, if the above representations are posted in the form of a statement of opinion that is one of the Internet portal site's character search questions and answers, it is difficult for the victim to view that the victim's sexual intercourse treatment capacity should be restricted to the victim's sexual character treatment ability, and the victim's motive or response cannot be seen as being exposed to the Internet users who have no such objective to the extent that it is difficult for the victim to view that there is no other motive or response, such as the victim's personal character, to the extent that the victim's personal character is exposed to the victim's personal character, and it is difficult for the victim to view that there is no other motive or response to the victim's personal character.

Nevertheless, the court below determined that there was a purpose of slandering a victim on the ground of the circumstances stated in its holding that there was an error of law by misunderstanding the legal principles regarding "the purpose of slandering a person," which is an element of defamation under Article 61 (1) of the Act, which affected the conclusion of the judgment.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the part of the judgment below's conviction is reversed, and the case is remanded to the court below 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 Kim Young-ran (Presiding Justice)