Constitutional Court Holds Public Hearing Today on Unconstitutionality of Criminal Act Article 307 Defamation by Fact Statement Punishment

Protection of Individual Personality Rights and Privacy vs Freedom of Expression

In the Grand Bench of the Constitutional Court, Chief Justice Yoo Nam-seok is delivering a ruling on a constitutional complaint case. / Photo by Kang Jin-hyung aymsdream@

[Asia Economy Reporter Choi Seok-jin] On the 10th, a public hearing will be held at the Constitutional Court regarding whether the current criminal law provision that punishes defamation even when the published fact is true infringes on freedom of expression and is unconstitutional.

The Constitutional Court will hold a public hearing on a constitutional complaint case concerning Article 307, Paragraph 1 of the Criminal Act, which stipulates 'defamation by stating facts,' starting at 2 p.m. in the Grand Courtroom.

Article 307 (Defamation) of the Criminal Act states in Paragraph 1 that "Anyone who publicly states facts and defames a person's honor shall be punished by imprisonment or detention for up to two years or a fine of up to 5 million won," thereby imposing criminal penalties such as imprisonment even if the published fact is true but damages another person's honor.

Paragraph 2 of the same article stipulates that "Anyone who publicly states false facts and defames a person's honor shall be punished by imprisonment for up to five years, suspension of qualifications for up to ten years, or a fine of up to 10 million won," imposing heavier penalties when the published content is false.

However, Article 310 (Justification) provides an exception by stating, "Acts under Article 307, Paragraph 1 shall not be punished if the facts are true and solely related to the public interest," thereby exempting defamation from being established when the published fact is true and related to the public interest.

Article 70 (Penalties) of the Information and Communications Network Act, which punishes defamation acts using the internet or social networking services (SNS) such as KakaoTalk or Facebook, states in Paragraph 1 that "Anyone who publicly reveals facts through an information and communications network with the intent to slander a person and defames another person's honor shall be punished by imprisonment for up to three years or a fine of up to 30 million won," also punishing defamation by stating facts.

The reason why the operator of 'Bad Fathers,' who disclosed the personal information of fathers who did not pay child support after divorce, was acquitted in the first trial was precisely because the disclosed content was true and the disclosure of the list was recognized as being in the public interest.

The petitioner A, who filed this constitutional complaint, decided in August 2017 to specifically disclose the malpractice of a veterinarian on SNS and other platforms after their pet dog, treated at an animal hospital, was at risk of blindness.

However, A, who learned that their actions could be punished as 'defamation by stating facts,' did not carry out the disclosure and filed a constitutional complaint with the Constitutional Court, arguing that the provision infringes on freedom of expression and is unconstitutional.

In response, the Ministry of Justice, as an interested party in this case, submitted an opinion to the Constitutional Court stating, "Even if the facts are true, fatal damage to external honor is possible."

They also stated, "Even if the published facts correspond to objective truth, disclosing private matters such as medical history, sexual orientation, or family affairs that an individual wishes to keep hidden can constitute a serious infringement on privacy and freedom."

The Ministry of Justice added, "Simply revealing weaknesses and faults that others want to hide to show that their honor is false, despite no public interest, is not included in freedom of expression," and "Post-remedies such as civil damages do not have the preventive effect of criminal penalties."

At the public hearing, Professor Kim Jae-joong of Chungbuk National University Law School will attend as a reference witness for petitioner A, and Professor Hong Young-gi of Korea University Law School will attend as a reference witness for the Ministry of Justice to present their opinions.

This content was produced with the assistance of AI translation services.