This study aims to analyze defamation and insult cases during the last ten years (2005-2015), and to investigate Korean courts’ standards for determining whether certain expressions or behaviors constitute defamations or insults.
First, courts have been interpreting the concept of “publicity” of alleging facts or insults under Articles 307 (Defamation) and 311 (Insult) of Criminal Act, and Article 70 of Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. to mean the state in which unspecified or many persons can know the facts or insults. The courts have been applying “the standard of a possibility of propagation” to determine the publicity of the alleged fact or insult and considering the relations between the accused, i.e. allegers, their listeners, and their victims. Second, courts have been ruling that a publication or expression of “facts” means a report or statement regarding facts of specific past or present in time and space, as opposed to, an opinion composed of a value judgment or uation, and that its contents must be provable by evidence. And the courts consider lay people's understandings as one of the standards for the fact. Third, the falsity or veracity of a publicly alleged fact is determined by whether the significant parts of the fact correspond with the realty. Minor errors and slight exaggerations do not invalidate the veracity of the alleged facts. In judging the veracity, main and overall purposes of the statements or publications are an important factor to consider. Fourth, courts have defined "insults" as expressions of abstract judgements or contemptuous feelings which can degrade others' social reputations. Alleged facts are not included in the category of insults under Article 311 of Criminal Act. And courts have admitted the possibility of defamation or insult to the name of group which is distributed to its each member. Fifth, conscious negligence with an awareness of the possibility of propagation and falsity is needed to constitute the crime of defamation and insult. In addition to conscious negligence, an intent to defame another is needed to constitute the crime of defamation through printed materials (Article 309 of Criminal Act) or cyber defamation (Article 70 of Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.). Courts understand that there is adversarial relationship between the intent to defame another and the purpose to promote the public interest. Sixth, Article 310 of Criminal Act states "If the facts alleged under Article 307 (1) are true and solely for the public interest, the act shall not be punishable." As to these factors that justify the act, whether the alleged facts have public concern and contribute to the formation of public opinions is considered significantly.