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
and boundary of “the other party to an act,” and even though the contents including
defamation is delivered to a small number of persons, a number of cases where such
act per se leads to a state that many and unspecified persons can recognize occur. In
particular, as for defamation through an information and communications network, as
controllability of information revealed by the violator is easily lost, and the degree and
scope of encroachment on the victim’s reputation resulting from fast communicability
are broad, there are many cases where self-purification through an argument against
and debate on expression is virtually meaningless.
Therefore, with respect to defamation through an information and communications
network, if the legal doctrine that the other party ought to directly recognize or publicity
cannot be satisfied on the sole basis of a small number of specified other parties is
asserted, its function as a criterion for resolution becomes difficult. Rather, even in the
case where facts were delivered to a specific minority, examining whether the general
danger of infringing an individual’s social assessment arose based on whether the
facts have possibility to be propagated to many and unspecified persons as a result
thereof accords with practical judgment on publicity, and can be the specific standard
for restricting the scope of publicity. Such meaning of publicity ought to be applied
equally in the Special Act such as the Criminal Act, Information and Communications
Network Act, etc
(E) Considering the harmony of legislation cases such as Section 193 of the German
Criminal Code or the recommendations of the U.N. Commission on Human Rights and
the freedom of expression, the “public interest” stipulated in Article 310 of the Criminal
Act ought to be also more widely recognized in cases of alleging genuine facts. In
particular, considering that the concept of relevance to the public interest is changing
with the times and public concern is also constantly changing depending on the
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