February 5, 2024
On February 2, 2024, Open Net Korea is initiating a renewed constitutional challenge against the provision (hereinafter “this provision”) regarding the ‘crime of defamation by citing facts’ as stipulated in the Act On Promotion Of Information And Communications Network Utilization And Information Protection (Article 70, Paragraph 1). A constitutional appeal has been filed on behalf of CEO Bohnchang Koo, who was implicated in the operation of the ‘(Former) Bad Fathers’ website. This website discloses the personal information of parents who have failed to pay child support.
In 2021, the Constitutional Court rendered a ruling affirming the constitutionality of the crime of defamation by stating facts under Article 307, Paragraph 1 of the Criminal Act, which serves as the general provision for this offense (Constitutional Court Decision 2017 Heonma 1113, 2018 Heon Ba 33, February 25, 2021). Subsequently, a similar decision affirming the constitutionality of this provision was made (Constitutional Court Decision 2021Hunba 281, September 26, 2023). The primary argument underlying these constitutional rulings was the minimization of restrictions on freedom of expression, as expressions made in the ‘public interest’ were not subject to punishment under the law or precedent. Regarding defamation under the Act On Promotion Of Information And Communications Network Utilization And Information Protection, it should be noted that the element of ‘intent to defame’ is integral to establishing the offense. There exists a body of precedent indicating that if a ‘public interest purpose’ is recognized, the element of ‘intent to defame’ is negated, thereby rendering the act non-criminal.
However, in the case of Bad Fathers, the trial in the first instance conducted through a jury trial resulted in a unanimous decision by all seven jurors and the bench to acquit Mr. Gu. They acknowledged the public interest purpose of Mr. Gu’s activities and determined that there was no intent to defame (2019고합425). However, in the appellate court (Suwon High Court 2020No70) and the Supreme Court (2022도699), it was deemed that the intent to defame outweighed the public interest purpose, leading to a guilty verdict. In essence, this case vividly illustrates the abstract and ambiguous nature of the concepts of ‘public interest purpose’ and ‘intent to defame’, which can vary greatly depending on the subjective judgment of the adjudicator. Such unpredictability and ambiguity in judicial decisions pose unjust constraints on freedom of expression, and the unconstitutionality of the crime of factual defamation remains unresolved.
Furthermore, the reputation that can be damaged by the revelation of ‘truth’ is nothing more than a reputation obtained through concealing the truth, also known as ‘false reputation’. The Bad Fathers verdict, which deemed even activities that contribute significantly to the public interest, such as speaking the truth and providing momentum for improving child support policies and securing the survival rights of many children, as subject to ‘criminal punishment’ to protect the false reputation or exaggerated reputation of parents who threaten their children’s right to survival by not paying child support, clearly exposes the excessiveness and unconstitutionality of the crime of truth defamation. Ultimately, the crime of truth defamation excessively inhibits various surveillance and reporting activities in society, such as the Me Too movement, exposure of the abuse of power, and reporting of school violence, where vulnerable individuals seek to reveal their victimization and truths to raise awareness among both the parties involved and society at large.
It is a fundamental international human rights principle that individuals should not face criminal punishment for speaking the truth. The United Nations Human Rights Committee has provided authoritative interpretations, affirming that under the freedom of expression provisions of the International Covenant on Civil and Political Rights, ratified by South Korea, individuals should not be criminally punished for truthful speech. Both the UN Human Rights Committee in 2015 and the UN Special Rapporteur on Freedom of Expression in 2011 recommended to the South Korean government the abolition of the crime of truth defamation. Moreover, during the 5th review of South Korea’s compliance with the ICCPR by the UN Human Rights Committee in 2023, the Committee reiterated its recommendation for the South Korean government to consider decriminalizing defamation itself and emphasized that imprisonment should never be an appropriate penalty for defamation under any circumstances. While the international community advocates for the decriminalization of acts of defamation, including those involving false statements, this provision violates international human rights norms by permitting imprisonment even when individuals have spoken the truth. The Constitutional Court’s decision to uphold the constitutionality of the crime of truth defamation constitutes a disregard of South Korea’s obligations as a party to the International Covenant on Civil and Political Rights and perpetuates a decision that contradicts international human rights norms.
In recent Constitutional Court decisions regarding the crime of factual defamation, four justices expressed dissenting opinions. Fortunately, compared to the past when only two justices had voiced dissenting opinions, there is a gradual increase in dissenting opinions within the Constitutional Court. It is hoped that the Constitutional Court, prompted by the Bad Fathers case, will critically reconsider the excessiveness and unconstitutionality of the crime of factual defamation and make a new judgment that aligns with the recommendations of the international community and international human rights norms in this constitutional petition.
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