Supreme Court en banc Decision 2020Do5813 Decided November 19, 2020 【Bodily Injury; Defamation; Assault】 【Main Issues and Holdings】 [1] Meaning of and standard for determining “publicity,” as a constituent element of criminal defamation Whether the so-called “theory of propagation possibility,” the legal doctrine which has been established under the precedents, may be maintained with respect to publicity of criminal defamation (affirmative) [2] In the case where the criminal defendant was charged with defaming Party A by publicly alleging facts, exclaiming aloud, “that person is an ex-convict who has served out his/her sentence,” to Party A, while Party B, the husband of the criminal defendant, and Party C, a relative of Party A, were listening on a back street of Party A’s house, the case holding that the possibility of propagation cannot be seen to be denied solely on the ground that Party C is a relative of Party A, but seeing that many and unspecified persons were in a state to be able to recognize the speaker is rather reasonable as the criminal defendant declared loudly enough for other villagers to overhear the facts alleged in a public place with the intention of merely insulting or defaming Party A in the process of doing battle with Party A, and thus the publicity of the criminal defendant’s above remark is recognized 【Summary of Decision】 [1] [Majority Opinion] The regulations related to criminal defamation require that a reputation be “publicly” or “openly” infringed, and “publicly” or “openly” herein lexically means “sufficiently transparent for the whole world to recognize the speaker” and “transparently without disguise or reserve.” Requiring publicity as the modality of an act is for an individual’s freedom of expression not to be excessively restricted by punishing only defamation which is socially detrimental as facts are circulated in society. The precedents of the Supreme Court have revealed that publicity means “in a condition that many and unspecified persons can recognize the speaker” as a constituent element of the criminal defamation, which is the general view of the academic world.