[1] The meaning and criteria for determining “purposes to defame people” under Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the standard for determining whether or not the facts alleged in relation to “public interest” are related to “public interest”

[2] The case holding that in case where the defendant, who is a student of the law branch of the cyber university, was prosecuted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (defluence) on the ground that he had damaged the reputation of Eul by putting his opinion on the ground that the defendant's major motive and purpose is for public interest and it is difficult to view that the defendant's major motive and purpose is for the benefit of the public interest and that there was a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (defluence) on the ground that the defendant's major motive and purpose cannot be seen as a purpose of slandering the defendant, on the ground that the court below erred by misapprehending the legal principles on the contrary.

[1] “Purpose of slandering a person” under Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is required to express an intent or purpose. Whether a person is intended to defame a person should be determined by comparing and balancing such factors as the content and nature of the alleged fact, the scope of the counter-party to whom the publication of the fact was made, and the degree of infringement of reputation that may be damaged or damaged by the expression, taking into account various circumstances as to the expression itself, such as the method of expression, etc. In addition, the term “non-disclosure purpose” is contrary to the direction of the actor’s subjective intent, which is for the sake of public interest. Therefore, the purpose of slandering a publicly alleged fact is denied, barring any special circumstance, where the publicly alleged fact concerns the public interest. Here, “when the publicly alleged fact is related to the public interest” is objectively deemed as related to the public interest, and an offender should also be deemed as having expressed the fact for the subjective public interest of the State, society, and other general public interest, as well as the motive and purpose of defamation or public interest.

[2] The case holding that in a case where the defendant, who is a student of cyber university, was indicted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (Defamation) because he only 200 students enrolled in the law department, posted a letter to seek advice on the qualifications of the president of the university, and stated that "the defendant, who is a student of cyber university, attempted to leave the election of the president of the university without paying student membership fees, has expressed his real name during the election of the president of the university of the immediately preceding year and expressed his personal opinions on the other party candidate," the case holding that it is difficult to view that "the above part has been removed," because he had damaged the reputation of the chairman of the university's general candidate by stating that he was unable to use the candidate's opinion on the reason that he did not have any more objective purpose than that of the chairman of the university's general candidate, and that he expressed his opinion or opinion on the matters that he would have to have been unable to use as his candidate's own opinion as a result of an attack or opinion."

[1] Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [2] Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., Article 32

[1] Supreme Court Decision 2010Do10864 Decided November 24, 2011 (Gong2013Sang, 114) Supreme Court Decision 2012Do10392 Decided November 29, 2012 (Gong2013Sang, 114) Supreme Court Decision 2016Do14678 Decided November 29, 2018

Defendant

Defendant

Attorney Lee Dong-young

High Court for Armed Forces Decision 2018No9 Decided September 19, 2018

The judgment below is reversed, and the case is remanded to the High Military Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. “Purpose of slandering a person” as prescribed by Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is required to express an intent or purpose. Whether a person is intended to defame a person should be determined by comparing and balancing the content and nature of the alleged fact, the scope of the counter-party against whom the publication of the fact was made, and the degree of infringement of reputation that may be damaged or damaged by the expression, taking into account various circumstances as to the expression itself, such as the method of expression itself. “In short,” the purpose of “non-disclosure” lies in the direction of an actor’s subjective intent, as it is against the public interest, not only for the purpose of public interest, but also for the purpose of slandering a person, barring any special circumstance. Here, “if the alleged fact is related to the public interest” is objectively deemed as related to the public interest, and an offender should also be deemed as having expressed such fact for the purpose of subjective public interest. Whether the offender is widely related to the public interest of the State, society and other general public interest, but also for the motive and public interest of the entire society.

2. According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On December 28, 2016, the Nonindicted Party posted a letter stating that only 200 members of the Department of Law of △△△ University, who was admitted to the Department of Law of the University of Cyber Colleges, shall reveal the intention of the president of the Korean Federation of Students and sought advice from him.” The Defendant, in the form of comments on the Nonindicted Party’s comments, posted a letter containing the text of the facts charged in the instant case (hereinafter “instant text”) in the form of comments on the Nonindicted Party’s comments, and again, the Defendant and the Nonindicted Party provided an opinion by means of preparing comments on each other.

B. The main contents of the comments posted by the Defendant revealing that the Nonindicted Party was a person with the law department who intends to run for the president of the total student group based on his/her law department and experience in the activities of the student council.

C. As a specific case supporting the above opinion, the Defendant mentioned in the instant text that “the school ○○○ intended to leave the election of the president of the Korean Federation without paying the student fees, and there is a case where the other party slanders the other party candidate and then divides the future department and expresses personal appraisal since then,” and added an opinion that “the part should have been removed.”

D. Around October 2015, the victim resigned from the candidate on December 2015, according to the interpretation of the election commission that, after running for the election of the president of the total number of students in 2016, the unpaid student membership fees cannot be maintained only by paying it at a late date and time, and the victim was in charge of both the president and vice president of the law in 2016.

E. The Nonindicted Party indicated that the Defendant’s comments led to the Defendant’s writing and expressed that the Nonindicted Party’s thoughts were short, and that the Nonindicted Party audited the Nonindicted Party’s comments. The Defendant expressed his opinion that the Nonindicted Party will be able to see the Nonindicted Party’s comments at the law school and student conference when putting the comments posted.

F. Many legal students, other than the Defendant, posted a letter stating the Non-indicted 1’s comments on the Non-indicted 1’s comments, but there was no reference as to the contents of the instant letter among them.

3. The following facts can be revealed from the above facts. ① The comments of this case are part of a series of comments made by the Defendant to clarify and advise the Nonindicted Party’s opinion on the qualification or support to be equipped with the Chairman of the Board of Students. ② The Defendant referred to the case when the victim was standing for the Chairman of the Board of Students in the immediately preceding year through the instant comments as a specific case in support of his own opinion, and the key contents of the case seems to be consistent with objective facts. ③ The candidate of the Board of Students of the Board of Students of the Republic of Korea must be able to some extent as to his behavior as a candidate, regardless of the candidate’s resignation or defeat at the time of candidate’s candidate, and even after the candidate’s resignation or defeat. ④ The Defendant did not use an aggressive expression to the victim, such as referring the victim’s name in the instant comments, but referring the victim’s name in the instant comments. It is difficult to see that the victim’s social conflict or interest in the formation of a conflict between the victim’s individual victim’s meeting and the victim’s interest in the instant agreement.

In light of the aforementioned legal principles, the following conclusions may be derived. The comments on the instant comments are matters related to the interest and interest of the students of the △△△ School Department related to the standing for the president of the total student group. The Defendant drafted the instant comments on the instant comments to provide the legal students, including the Nonindicted Party, with an opinion to assist them in making decisions. Accordingly, the primary motive and purpose of the Defendant is for the public interest, and it is difficult to view that the Defendant’s major motive and purpose is for the public interest, and

Nevertheless, the lower court upheld the first instance judgment convicting the Defendant of the instant facts charged by deeming that there was a purpose of slandering the victim. In so doing, the lower court erred by misapprehending the legal doctrine on “purpose of outflow” as prescribed by Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below 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

Justices Min You-sook (Presiding Justice)