Blog, Criminal

We already have discussed the basic elements of defamation, and also the justifying clause. This article is about “publicity (공연성).” Publicity is also one of the elements of defamation in Korean law. 

What is Publicity? 

Publicity is required in all types of defamation. For example, Criminal Act, Article 307 (1), which is the most basic form of all defamation clauses, requires “publicity” for the completion of a violation.

Criminal Act Article 307 (1) 

A person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won.

The reason for the requirement of publicity is due to the nature of defamation crime. Defamation is a matter of the victim’s social reputation. Hence, only “publicly alleging” facts (or untrue facts) may consist of defamation. For “publicity,” there should be enough people to hear or read what the criminal has said or written in order to harm one’s social reputation. (Likewise, Article 311, “Insult (모욕죄)” is also a matter of social reputation. Therefore, swearing against someone when no one is around themselves cannot complete the crime of insult.)

The Theory of Propagation Possibility

However, there is something more than what is literally written in the Article. The Supreme Court of Korea has consistently adopted and developed a legal principle named “the theory of propagation possibility (전파가능성 이론)”: even if there is only one person who has heard the defaming words, yet still the possibility of that one person spreading out what he or she have heard exists, then there is a possibility of propagation of defaming word, and this will lead to undermining of one’s reputation. Simply saying, it does not really have to be “public” to satisfy “publicly alleging.”

It is never that the Supreme Court always recognizes the propagation possibility. In fact, there are certain standards the Supreme Court uses to determine whether it is spreadable or not. For example, if the one person who has heard the defaming word is a family member or in a close relationship with the victim, then the possibility will not be recognized. The premise of the logic is that you would not spread bad words about your friend or family, thus the propagation of defaming will not happen. It is not “probable” for a family member to convey rumors against your own family. 

Despite the existence of the standards thereof, still there is a severe controversy over whether the court should maintain the theory of propagation possibility. One of the major criticisms against this theory is that the statute literally requires “public,” and one person is not public. Moreover, this theory widens the scope of the establishment of defaming and accordingly shrinks the freedom of speech which is placed at the opposite of the protection of social reputation. The standard also matters. What would be the specific standard that would determine the possibility? Family is okay, then what about relatives? Should this theory be maintained? The answers of the Supreme Court would be the 2020Do5813(en banc – a decision by the full court of the Justice of the Supreme Court) which is one of the most recent decisions that the Supreme Court of Korea made about the theory of the possibility of propagation. 

2020Do5813(en banc) Decision

The gist of the fact

• The defendant and the victim, as neighbors, were in a conflicting relationship due to various issues. 
• The defendant defamed the victim by publicly alleging facts, exclaiming aloud, “That person is an ex-convict who has served out their sentence,” to the victim. 
• Person A, the husband of the defendant, and Person B, a relative of the victim, were listening on the backstreet of the victim’s house. 
• Regarding the Person B, the defendant argued that as the Person B is a relative of the victim, there is no propagation possibility, thus publicity does not exist. 

In the decision, the Supreme Court decided to maintain the theory of propagation possibility. The majority opinion has concluded that it should still be adopted. The rationale is as follows.

– About the basic concept of the possibility of propagation, the decision is as below. 

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 it can be seen to be public if there is a possibility to be propagated or disseminated to many and unspecified persons even if such act targets only specified individuals or a few persons.”

– About the standards to determine the publicity, the decision is as below. 

Whether there exists publicity ought to be comprehensively determined after considering the objective overall circumstances at the time of such act, including the relationship or status between the person who made the remarks and the other party or the victim, background and situation leading up to such conversations, details of the revealed facts, the manner and location in which the facts were revealed, etc., and examining whether the other party may propagate such facts to many and unspecified persons therefrom. (omitted) 

A person who committed such an 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. 

– For the reason why it should be maintained, the decision is as below. 

The theory of propagation possibility can be seen to accord with the concept of publicity as referred to in various forms of defamation punishment regulations including an information and communications network, etc. Most intentions are expressed and conveyed through an information and communications network including SNS, e-mail, 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.

– About criticism that this theory widens the scope of crime completion

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 circumstances, the relevance to the public interest should not be limited to public figures, systems, policies, etc. 

Accordingly, details of the facts alleged can be seen to have public interest if they are matters related to communal life with the other general public even if they are matters related only to part of the general interest of society, and, by extension, in the case where they are related to the public interest and gain social attention even if they are matters regarding an individual, the application of Article 310 of the Criminal Act should not be excluded on the sole grounds that they do not concern the general interest of the state and society or particular social groups. Even in the case of a private person, the relevance to the public interest ought to be determined in consideration of the nature of social activities associated with said person and the influence that said person has on society.

– About the case, the Supreme Court had judged that the possibility of propagation should be identified in the context, and the sole fact that the one who has heard of the defaming is the relative of the victim cannot be the reason to deny the possibility and probability of propagation. 

In the case where the defendant was charged with defaming the victim by publicly alleging facts, exclaiming aloud, “that person is an ex-convict who has served out his/her sentence,” to the victim, while Person A, the husband of the defendant, and Person B, a relative of the victim, were listening on a back street of the victim’s house, the case holding that the possibility of propagation cannot be seen to be denied solely on the ground that Person B is a relative of the victim, but seeing that many and unspecified persons were in a state to be able to recognize the speaker is rather reasonable as the defendant declared loudly enough for other villagers to overhear the facts alleged in a public place with the intention of merely insulting or defaming the victim in the process of doing battle with the victim, and thus the publicity of the defendant’s above remark is recognized. 

Conclusion

In short, the majority opinion of the Supreme Court insists that the theory of propagation possibility should be maintained for some reasons. 

1. There shall be not only a possibility but also a probability of propagation
2. The possibility could be determined by certain criteria such as background and situation leading up to such conversations, details of the revealed facts, the manner and location in which the facts were revealed
3. The development of the Internet and social media increases the danger of defamation, thus the need to protect the benefit of social reputation is rising accordingly. 
4. Korean defamation law has justification clauses such as Criminal Law Article 310, the “public interest” doctrine. Therefore, widening the scope of the completion of crime is quite reasonable. 
5. And being a relative might be an element of denying the propagation possibility but cannot be a critical factor. 

This decision was by en banc, the full assembly of the justices of the Supreme Court. When doctrines and principles are confirmed by en banc, it takes quite a plenty of time for the Supreme Court to reexamine and review the former decisions. It is hard to know what will happen in the future – whether the theory of propagation possibility will be discarded or reinforced, but what we can only assume is that the principles thereof will still apply for a while. 

Seoul Law Group has dealt with numerous cases of defamation. If you need any help, we are here to help you.