What Is Defamation?
Defamation as defined in Article 307 of the Korean Criminal Act is as follows:
(1) A person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without labor for not more than 2 years, or by a criminal fine not exceeding KRW 5 million.
(2) A person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than 5 years, suspension of qualifications for not more than 10 years, or by a criminal fine not exceeding KRW 10 million.
What Is Honor?
The concept of honor can be divided into an objective concept of honor and a subjective concept of honor. The objective concept of honor encompasses both internal honor and external honor, while the subjective concept of honor refers to the feeling of honor.
- Internal honor is the inner value that one objectively holds, independent of one's own or another person's evaluation, and it is not something that can be infringed upon by others.
- External honor refers to the social evaluation of an individual's human and social worth. Under this view, the act of damaging the external evaluation of a person's social worth is precisely what constitutes the act in the offense of defamation.
In other words, defamation is an act that damages the external evaluation of a person's social worth.
Elements of Defamation
The elements required to establish defamation are publicity(capable of being perceived by an unspecified number of people), specificity(the target can be inferred or identified), and the purpose of disparagement(the intent to defame).
If the charge is defamation by stating false facts, the alleged fact must be false, and the offender must have been aware that the fact was false.
In judging whether something is false, if the core content is an objective fact, the statement will not be deemed false even if it differs slightly from the truth in details or contains somewhat exaggerated expressions.
Grounds for Excluding Illegality
Article 310 of the Korean Criminal Act provides that even where defamation has occurred, it shall not be punished if the statement is true and made solely in the public interest.
Article 310 (Grounds for Excluding Illegality) An act under Article 307 paragraph 1 shall not be punished where it is a true fact and made solely in the public interest.
Online Defamation
In modern society, the space where defamation occurs is mainly the information and communications network.
Accordingly, Article 44 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.(hereinafter the Information and Communications Network Act) addresses defamation committed over the information and communications network.
(1) A user shall not circulate, through an information and communications network, information that infringes upon the rights of others, such as invasion of privacy or defamation
In addition, Article 70 of the Information and Communications Network Act sets out the applicable penalties.
(1) A person who, with the purpose of disparaging another, publicly alleges facts through an information and communications network and thereby defames another shall be punished by imprisonment for not more than 3 years or by a criminal fine not exceeding KRW 30 million. <Amended 2014. 5. 28.>
(2) A person who, with the purpose of disparaging another, publicly alleges false facts through an information and communications network and thereby defames another shall be punished by imprisonment for not more than 7 years, suspension of qualifications for not more than 10 years, or by a criminal fine not exceeding KRW 50 million.
(3) For the offenses under paragraphs 1 and 2, no public prosecution may be instituted against the clearly expressed will of the victim.
You can see that the penalties for defamation are heavier under the Information and Communications Network Act.
Requesting Deletion of Information or Posting of a Rebuttal
If a person's rights are infringed, such as through defamation, by information provided over an information and communications network for the purpose of public disclosure, the person whose rights have been infringed may, by demonstrating the fact of the infringement to the information and communications service provider that handled the information, request that the information be deleted or that a rebuttal be posted(hereinafter referred to as “deletion, etc.”)
Interim Measures
Even where a request for deletion of information has been made, if it is difficult to determine whether a right has been infringed or if a dispute between interested parties is anticipated, the information and communications service provider may take a measure to temporarily block access to the information in question(hereinafter referred to as an “interim measure”)
Here, the period of an interim measure must not exceed 30 days.
Even without a request for deletion of information, an information and communications service provider may, on its own initiative, take an interim measure if it recognizes that information circulating on the information and communications network it operates and manages infringes upon the rights of others, such as through defamation.
In such a case, the information and communications service provider must ensure that the user is able to learn of the fact that an interim measure has been taken.
Sexual Harassment via Telecommunications Media?
Even if defamation has occurred, it is difficult to punish where there is no publicity. For example, in cases involving private messengers such as KakaoTalk, one-on-one verbal abuse in a game, or one-on-one conversations in a secondhand transaction, there is no publicity, so it is difficult to impose punishment.
However, a person may be punished under the offense of sexual harassment via telecommunications media(통신매체이용음란죄, hereinafter sexual harassment via telecommunications media).
Sexual harassment via telecommunications media is defined in Article 13 of the Act on Special Cases Concerning the Punishment of Sexual Crimes(성폭력범죄의 처벌 등에 관한 특례법, hereinafter the Sexual Crimes Punishment Act).
A person who, for the purpose of arousing or satisfying his or her own or another person's sexual desire, causes words, sounds, writings, pictures, images, or objects that induce a sense of sexual shame or aversion to reach the other party through the telephone, mail, a computer, or any other telecommunications medium shall be punished by imprisonment for not more than 2 years or by a criminal fine not exceeding KRW 20 million.
In other words, because sexual harassment via telecommunications media is treated as a sex crime, it should never be taken lightly.
That said, among the elements of the offense, the ‘purpose of arousing or satisfying sexual desire’ has no objective standard, so it is an area left largely to the court's discretion.
Therefore, we strongly recommend that you consult a criminal defense attorney regarding this matter.
