of expression, as fundamental rights constitutionally guaranteed, ought to be protected
within each area through the adversarial process among them in mutually strained
relations, and one side cannot be sacrificed to protect the other.
3) Meaning and contents of publicity in accordance with communication means and
structural changes
The meaning of publicity is not fixed but the concept and content can differ according
to the changes of times or development of information and communications networks.
In our society, there are also many cases of raising unfounded doubt or revealing
rumors about another’s hierarchical and social status, activities, etc. by using an
information and communications network such as the Internet, etc. Although the
revealed facts are not false facts, the case which is no different from defaming another
or seriously harming another’s social evaluation at least by actually alleging false facts
in the matter of raising distorted doubts or additionally revealing biased opinions or
unjust assessment based thereon frequently occur. Furthermore, under the influence
of the conventional values of our society placing emphasis on honor and decency,
social damage has already been serious as a result of defamation and libelous
comments through information and communications networks including the Internet,
etc. Therefore, personal rights greatly need to be protected by regulating libelous
expressions in consideration of the aforementioned current modality of defamation and
the distinct characteristics of our society even in case of guaranteeing the freedom of
expression (see e.g., Constitutional Court en banc Decision 2013Hun-Ba105,
2015Hun-Ba, Feb. 25, 2016 (Merged)).
The theory of propagation possibility can be seen to accord with the concept of
publicity as referred to in various forms of defamation punishment regulations including
an information and communications network, etc. Most intentions are expressed and
conveyed through an information and communications network including SNS, e-mail,
portal site, etc. as a result of the development and universalization of mobile
technology such as the Internet and smartphone, and, according thereto, defamation
through information and communications networks is also rapidly growing. Such
information and communications network and information distribution processes have
intrinsic attributes of virtual interaction, accessibility, anonymity, connectivity, etc., and
thus as information is easily stored infinitely, reproduced and delivered, defamation
through an information and communications network becomes obscure in the scope
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