of the alleged facts is in such status relationship as friends or colleagues, rendered
contradictory judgments. However, as the Supreme Court precedents determined after
taking into account the overall circumstances such as the background leading up to
the conversation, details of the facts alleged, how and where the facts were revealed,
etc., not determining the standard for determining the propagation possibility solely
based on status relationships such as friends or colleagues, criticizing the Supreme
Court precedents by merely citing one of them is unreasonable.
3) The Dissenting Opinion viewed that the theory of propagation possibility is a bar
to coherent interpretation regarding publicity as referred to in the distribution, etc. of
obscene pictures, public indecency, etc.
However, as the risk of infringement on good sexual morals, benefit and protection
of the law in the distribution, etc. of obscene pictures and public indecency is caused
by conditions or actions, not words, it has no option but to differ in dimension from
criminal defamation, which requires the occurrence of a risk of defaming another’s
reputation due to the propagation of libelous facts as a constituent element.
Thus, publicity in the above crimes can be variably interpreted from that as referred
to in criminal defamation. This is the same as construing the meaning and extent of
each violence and intimidation in crimes concerning rape, robbery, and extortion
differently.
C. For the Dissenting Opinion to advocate complete abolition of the precedents on
the grounds of the principle of legality is not appropriate. Furthermore, even from the
perspective of the Dissenting Opinion, establishing an objective evaluation criterion for
publicity or clearly determining whether publicity exists it cannot be seen to be possible.
1) The theory of propagation possibility is merely related to the interpretation of
publicity and does not relate to the principle of legality. This is because one or another
legal principle on interpretation cannot be drawn from the great principle of legality and
the meaning that many and unspecified person ought to recognize “directly” cannot be
deduced from a literal interpretation of “publicly.”
The meaning of publicity is also construed in various ways in foreign legislation
cases requiring publicity as a constituent element with respect to criminal defamation
and may change with the times. For instance, the precedents of the Supreme Court of
Japan, which construed publicity as referred to in criminal defamation as “a state that
many and unspecified persons can recognize,” changed its interpretation to “a state
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