. Therefore, the possibility of propagation can be determined based on the objective
criterion as mentioned above even in the case of following the theory of propagation
possibility; a person who committed such act could fully predict whether publicity
existed at the time of the remark; and neither the possibility of propagation can be
determined on the sole basis of the other party’s intention of propagating the facts nor
legal responsibility can be imposed based on the result that the facts were actually
propagated.
In particular, publicity is denied in that reasonably high levels of confidentiality are
expected due to the duty to maintain confidentiality in the case where the other party
has personally close relationships with the spouse, relatives, friends, etc. of either the
person making the remarks or the victim or such relationships or status in the case of
public officials who ought to handle such confidential information or those who are in
a similar position (see e.g., Supreme Court Decisions 78Do472, Apr. 25, 1978;
81Do1023, Oct. 27, 1981; 84Do86, Mar. 27, 1984; 99Do4579, Feb. 11, 2000;
2002Do4800, Nov. 26, 2002).
As above, where the person who made the remarks and the other party, and the
victim and the other party are in special relationships, and the other party has a special
status or position officially, there ought to exist special circumstances sufficient to see
that such facts can be propagated to many and unspecified persons despite such
relationships or positions to recognize publicity with respect to an act of alleging facts
against the other party.
C) Sub-conclusion
The Supreme Court precedents have established various legal principles of
limitation in relation to an act of alleging facts to a specific minority while developing
specific standards for determining whether propagation is possible. The key is that a
vague propagation possibility alone is not sufficient; a high possibility or probability is
required; and strict prosecutorial proof thereof is required in order to recognize publicity
on the grounds that remarks individually made to a small number of persons have the
possibility of being propagated to many and unspecified persons.
2) Occurrence of danger of defaming another’s reputation and interpretation of
publicity
Even though the provision on criminal defamation stipulates “defaming another’s
reputation,” the reason why this is viewed not as a depriving offense but rather an
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