It is unusual that a person who defames another by publicly alleging facts should be punished. The UN Human Rights Committee and the Human Righs Committee on the International Covenant on Civil and Political Rights (ICCPR), affiliated with UN recommended that Korean government abandon a regulation of defamation by publicly alleging facts on 21 March, 2011 and 6 November, 2015 respectively.
In Korea, defamation has been raised again due to the fever of “Me Too Campaign.” Victims are encouraged to tell the truth, however, they can be suffered from secondary damage by defamation by publicly alleging facts. The regulation will make victims of sexual violence not to say what they experienced and turn them as offenders to be punished. While Constitution of the Republic of Korea shall be the Supreme Law and has guaranteed freedom of speech as a basic right of all citizens, it is hard to understand that Criminal Act regards telling the truth as a criminal behavior.
This research is aimed to analyze whether the provision of defamation by publicly alleging facts should be fulfilled or abolished, and tries to issue alternative measures not to consider the defamation as a criminal behavior.
This report has examined core and controversial legal issues based on existing policies and legal systems in order to find out criminal justice responses. It has applied comparative analyses by considering the legislations of defamation in the US, Germany and Japan.
With the contradiction of Constitution and Criminal Act, the analyses on Article 307 Provision(1) of Criminal Act and Article 310 of Criminal Act have become a clear evidence of several research projects to abolish defamation by publicly alleging facts. This report analyzes those advanced research. However, for providing differentiation, it has comparatively analyzed the cases from two perspectives of interpretation of the law and jucicial precedents, and tries to make a suggestion on criminal justice responses to publicly alleging facts.
Sharp arguments have been evoked on the pros and cons of defamation by publicly alleging facts in Criminal Act. A person against the provision has insisted victims will be reluctant to make their voices and to tell the truth due to the fear of possible lawsuits they might be faced, which is against freedom of speech.
Constitution has guranteed freedom of speech as a basic right, but the provision of defamation in Criminal Act has stipulated all types of expression as possible criminal crimes, which has been criticized to contradict freedom of speech.
In other words, publicly alleging facts should be regulatd by a civil law rather than a criminal law, because it will be rare for people to violate the law by alleging facts. On the other hands, a stance in favor has urged personal rights and privacy should be protected and personal honor in Constitution do likewise. Alleging not false facts can step into personal honor, and it is imperative those rights should be protected by Criminal Act.
The core issue of defamation by publicly alleging facts is a clash of two basic rights between right of respect and freedom of speech. Two basic rights are difficult to estimate which right outweights the other.
Even though, undoubtedly, freedom of speech, a backbone of democracy, is an important basic right, personal honor is also a value and a benefit of the law to be protected. Considering the fact that a person who defames another by publicly alleging facts shall be punished, stipulated in Article 307 Provision (1) of Criminal Act, another problem is a protection of a so-called ‘false reputation.’ Article 310 of Criminal Act has mentioned the case if the facts alleged under Article 307 (1) are true and solely for the public interest, the act shall not be punishable. It can be interpreted if the facts alleged under Article 307 (1) are true but not soly for the public interest, the act shall be punishable. However, there is no clear evidence that freedom of speech is allowed only within the boundary of not impeding other’s basic rights, and feedeom of speech is acceptable only for the case of the public interest. Thus, Article 307 Provision (1) of Criminal Act seems to be allowed feedom of speech should be permitted only for the the public interest, however, which violates Constitution of the Republic of Korea. Furthermore, Article 37 Provision(2) of Constitution has stipulated “The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare.” In this light, if the order or public welfare can be regarded as the public interest, it would be more understandable the public interest has been prescribed as a partial factor of crimes, rather than precluding wrongfulness caused by the interest.
It is problematic that the defamation of another by publicly alleging facts violates Constitution and unjustifies Criminal Act, however, persional right of honor is for sure legal interests to be protected. Article 21 Provision(4) of Constitution and Article 17 of Constitution have described if the violation of the honor or rights of other persons, claims may be made for the damage, and the privacy of no citizen shall be infringed, respectively. The defamation by impeding the privacy of others should not be allowed. Therefore, even though the provision on the defamtion of another by publicly alleging facts is abolished, it is fair to say to implement alternative regulations on punishement in order to protect person’s privacy.