〈Case of defamation by posting a status message on a KakaoTalk account profile〉[Gong 2020Ha, 1298]

【Holding】

[1] The method of determining whether ‘the reputation of a victim was damaged by disclosing facts with the victim specified,’ as a requirement for the establishment of the crime under Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.

[2] In a case where the defendant reported school violence against the defendant's daughter A, an elementary school student, and the school principal, pursuant to a resolution of the School Violence Countermeasures Autonomous Committee, took measures against B, the perpetrator student, including a ‘prohibition of contact with and retaliation against the victim student,’ and thereafter the defendant posted on the status message of the defendant's KakaoTalk account profile the text “School violence offenders: no contact!!!” together with three fist-shaped emoticons, and the defendant was prosecuted for violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (Defamation) on the ground that the defendant thereby defamed B, the Court held that, in light of all the circumstances, the defendant cannot be regarded as having disclosed, through the above status message, specific facts sufficient to lower B's social value or reputation, and that the lower court's judgment, which held otherwise, erred in misapprehending the relevant legal principles

【Summary of Decision】

[1] Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. provides that “a person who damages the reputation of another person by publicly disclosing facts through an information and communications network with the purpose of slandering that person shall be punished by imprisonment for not more than three years or by a fine not exceeding 30 million won.” For the crime under this provision to be established, the reputation of a victim must be damaged by disclosing facts with the victim specified. Here, disclosing facts means disclosing facts that are specific enough that the social value or reputation of a particular person may thereby be infringed; for that requirement to be satisfied, specific facts need not necessarily be directly stated, but at least such facts must be readily inferable from the particular expression. Moreover, for the victim to be regarded as specified, the expression, when its content is considered together with the surrounding circumstances, must be such that one can discern whom it refers to. Meanwhile, in distinguishing whether a particular expression is a statement of fact or an opinion, the determination must be made in consideration of the overall circumstances, such as the ordinary meaning and usage of the language, its provability, the context in which the words at issue were used, and the social situation in which the expression was made.

[2] In a case where the defendant reported school violence against the defendant's daughter A, an elementary school student, and the school principal, pursuant to a resolution of the School Violence Countermeasures Autonomous Committee, took measures against B, the perpetrator student, including a ‘prohibition of contact with and retaliation against the victim student,’ and thereafter the defendant posted on the status message of the defendant's KakaoTalk account profile the text “School violence offenders: no contact!!!” together with three fist-shaped emoticons, and the defendant was prosecuted for violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (Defamation) on the ground that the defendant thereby defamed B, the Court held that the lower court's judgment, which held otherwise, erred in misapprehending the relevant legal principles, since the defendant cannot be regarded as having disclosed, through the status message, specific facts sufficient to lower B's social value or reputation by describing B's school violence incident or the measures B received as a result of that incident, in light of the following: the above status message does not reveal the factual basis underlying the expression; the word ‘school violence offender’ is an expression referring generically to ‘a person who has committed school violence,’ and the defendant merely took ‘school violence offenders’ per se as the object of the expression and did not refer to any particular person as a ‘school violence offender’; considering the reality of our society, in which school violence has emerged as a serious problem, and the defendant's position as a parent of an elementary school child, it cannot be concluded that the defendant's use of the word ‘school violence offender’ referred to an actual school violence incident that had occurred; the phrase ‘no contact’ is ordinarily understood to mean ‘do not make contact’; and there is no evidence to establish that the fact that the above measures were imposed on B through the above resolution and the like had become known to B's classmates or their parents.

【Referenced Statutes】

[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.

【Referenced Precedents】

[1] Supreme Court Decision 82Do1256, November 9, 1982 (Gong 1983, 129)
Supreme Court Decision 97Do2956, March 24, 1998 (Gong 1998Sang, 1248)
Supreme Court Decision 2011Do6904, August 18, 2011 (Gong 2011Ha, 1964)
Supreme Court Decision 2011Do11226, March 27, 2014

(Source: Supreme Court Decision 2019Do12750, May 28, 2020 [Violation of the Child Welfare Act; Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (Defamation)] > Comprehensive Legal Information, Precedents)