Monday, October 15, 2018

What is defamation?

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I have received many inquiries on defamation. I’d like to briefly discuss defamation on this post. Korean Criminal Act prescribes on defamation and the relevant Article is as follows;

 Article 307 (Defamation)          
(1)         A person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won. <Amended by Act No. 5057, Dec. 29, 1995>
(2)         A person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than five years, suspension of qualifications for not more than ten years, or a fine not exceeding ten million won. <Amended by Act No. 5057, Dec. 29, 1995>

There are several elements of the crime to be notice in the Article above. First of all, it is necessary to note what ‘publicly’ means. According to Supreme Court cases, even if the facts were told to only one person, the facts would be acknowledged as ‘publicly’ alleged in case there was possibility to be disseminated to others.

Second, what is ‘alleging (false) facts’? The Supreme Court mentioned that “alleging facts” means not just an opinion based on value judgment but detailed the facts in the past or present and its expression shall be improvable. For instance, according to one of Supreme Court cases, a minister who called a person as a ‘heresy’ shall not be punished for defamation as the expression ‘heresy’ is not recognized as “alleging facts”. Please note that alleging the facts that would happen in the future may be also an element of a crime.  

You may wonder about the case that one defames other person on the Internet. As for this case, Act on Promotion of Information and Communications Network Utilization and Information Protection, etc(hereafter referred to as the ‘Act’). shall be applied. The Act is a special act, so it shall be prior to Criminal Act. The relevant Article of the Act is as follows;

Article 70 (Penalty Provisions)
(1)         A person who commits defamation of another person by disclosing a fact to the public through an information and communications network purposely to disparage his/her reputation shall be punished by imprisonment with labor for up to three years, or by fine not exceeding 30 million won. <Amended by Act No. 12681, May 28, 2014>
(2)         A person who commits defamation of another person by disclosing a false fact to the public through an information and communications network purposely to disparage his/her reputation shall be punished by imprisonment with labor for up to seven years, by suspension of qualification for up to ten years, or by fine not exceeding 50 million won.
(3)         The public prosection may not prosecute a person who committed a crime under paragraph (1) or (2) against the victim's will explicitly manifested.

As you might know, it is not easy to conclude that offending expression fit into defamation or not as there are intricate elements of defamation. For further inquiries, please feel free to contact me at yhwang618@gmail.com.

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