Supreme Court Decision 2020Do11471 Decided December 10, 2020 【Violation of
the Act on Promotion of Information and Communications Network Utilization and
Information Protection, etc. (Defamation)】
【Main Issues and Holdings】
Whether the intent to disparage a person’s reputation exists and whether a fact
disclosed by the criminal defendant is false, of the constituent elements of defamation
stipulated in Article 70(2) of the Act on Promotion of Information and Communications
Network Utilization and Information Protection, etc., correspond to a separate
requirement (affirmative), and if the fact revealed is false, whether the intent to
disparage a person’s reputation ought to be seen to be recognized (negative)
Where the burden of proof for all the constituent elements prescribed in the above
provision lies (held: prosecutor)
The meaning of and standard for determining the “intent to disparage a person’s
reputation” and the relationship between “intent to disparage a person’s reputation”
and “public interest”
Standard for determining whether the fact revealed is about the “public interest”
【Summary of Decision】
Article 70(2) of the Act on Promotion of Information and Communications Network
Utilization and Information Protection, etc. stipulates that “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 the reputation of
such a person, shall be punished by imprisonment with labor for up to seven years, by
suspension of qualification for up to 10 years, or by a fine not exceeding KRW 50
million.” A crime in accordance with the above provision ought to be seen to be
constituted when the fact purposely disclosed by the criminal defendant is false, the
fact is recognized as false, and the intent to disparage a person’s reputation exists.
Whether the intent to disparage a person’s reputation exists is a separate constituent
element from whether a fact disclosed by the criminal defendant is false, and the intent
to disparage a person’s reputation is not recognized on the grounds that the fact