The Supreme Court has consistently determined that publicity with regard to criminal
defamation is recognized when the other party thereof has possibility to propagate the
alleged facts to many and unspecified persons even if the facts were alleged to a few
persons individually, and thus the theory of propagation possibility has been settled as
an established legal principle regarding publicity. Such legal doctrine is applied equally
to
determination
on
publicity of
defamation
through
an
information
and
communications network under the Act on Promotion of Information and
Communications Network Utilization and Information Protection, etc. (hereinafter
“Information and Communications Network Act”) or defamation of candidates under
the Public Official Election Act, and thus has been applied as the basic legal doctrine
of the precedents of the Supreme Court regarding publicity of criminal defamation
regardless of whether the revealed facts are false or correspond to defamation under
the Special Act.
The theory of propagation possibility regarding publicity, which has been developed
by the Supreme Court over a long duration, is even now still reasonable in light of legal
and practical aspects, and thus ought to be maintained. The Supreme Court
precedents and trial affairs have strictly recognized publicity by applying the theory of
propagation possibility on the premise that awareness of propagation possibility is
required, categorizing the standards for determining on a case-by-case basis,
including establishing specific and objective criteria for applying the theory of
propagation possibility and strictly determining the criminal intent of the criminal
defendant or denying the propagation possibility depending on the relationship
between the other party of the facts alleged and the criminal defendant or the victim,
considering that the freedom of expression can be discouraged as the requirements
for publicity become meaningless and punishment is expanded where the theory of
propagation possibility is applied without restriction. The rationale is as follows.
(A) Publicity is a constituent element of criminal defamation, and the case where
facts are revealed to a specific minority can be a probable circumstance in which
publicity is denied, and thus strict prosecutorial proof is required with regard to the
possibility of propagation. Furthermore, the Supreme Court required not merely
“possibility” but “probability” as the degree of proof regarding the possibility of
propagation by ruling that “such act as transmitting information individually or privately
to specified individuals or a few persons cannot be deemed to be public: Provided, that
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