Supreme Court: "No Defamation Without Possibility of Dissemination"… Man Who Sent False Texts to Ex-Girlfriend's Acquaintance Acquitted

Supreme Court En Banc. / Provided by the Supreme Court

[Asia Economy Reporter Seokjin Choi] The Supreme Court has ruled that even if a false text message is sent, if the recipient is someone close to the victim and there is no possibility of the message spreading to an unspecified number of people, it cannot be punished as defamation.

The Supreme Court's 3rd Division (Presiding Justice Min Yusook) confirmed the acquittal verdict of the lower court on the appeal of Mr. A, who was prosecuted for defamation under the Information and Communications Network Act for sending false text messages related to his ex-girlfriend to her acquaintances, on the 25th.

For defamation under the Criminal Act or the Information and Communications Network Act to be established, the requirement of "publicity," meaning a state where "an unspecified or numerous people can recognize" the statement, must be met.

The Supreme Court judges publicity based on the possibility of dissemination. Even if the statement is made to only one person, publicity is recognized if there is a possibility of spreading to an unspecified number of people. Conversely, even if the statement is made to multiple people, publicity is denied if it is judged that there is no possibility of dissemination due to a special relationship such as the victim's family.

The court stated, "To recognize publicity on the grounds of the possibility of dissemination for statements made to a small number of individuals, it is insufficient to merely assert a vague possibility of dissemination; a high degree of possibility or probability is required, and strict proof by the prosecution is necessary."

It added, "Especially when the interlocutors are in a private and close relationship with the speaker or the victim, such as spouses, relatives, or friends, where a high degree of confidentiality can be expected, publicity is denied. To recognize publicity, there must be special circumstances indicating that despite such relationships, the statement could be disseminated to an unspecified or numerous people."

Mr. A was prosecuted for sending false text messages related to his ex-girlfriend Ms. B to Mr. C, who introduced Ms. B to him, and Mr. D, a longtime friend of Ms. B, between January and February 2016.

After dating Ms. B, Mr. A broke up with her at the end of 2015. When Ms. B avoided his calls and eventually changed her phone number, making contact impossible, Mr. A sent false text messages to Mr. C in January 2016, including statements like, "How could you introduce a woman who goes to bars and has received living expenses from a married man for 11 years?"

Mr. A also sent Mr. C a screenshot from a video showing a man and woman undressing and engaging in sexual activity, along with a text message implying that the woman in the video was Ms. B.

In February of the same year, Mr. A sent false text messages to Ms. B's friend Mr. D, saying, "Please make sure to tell Ms. B," and "What man could understand a woman who has lived like this? She lied until the end, and I uncovered those lies. Ms. B, you really are a gold digger."

In the first trial, the court recognized the establishment of defamation because the content of the text messages sent by Mr. A included provocative subjects such as Ms. B being a gold digger and the existence of obscene videos, which posed a high risk of spreading to third parties, and sentenced Mr. A to a fine of 2 million won.

Although Mr. C and Mr. D were acquaintances of the victim Ms. B, the court considered that since they were not family members or people sharing economic interests with the victim, there was a possibility of sharing the messages with surrounding acquaintances.

On the other hand, the second trial overturned the first trial and acquitted Mr. A, judging that there was no possibility of dissemination, considering that the text messages sent to Mr. C, who introduced the girlfriend, also contained criticism of Mr. C, that Mr. C and Mr. D did not believe the content of the messages and rather thought it was nonsense, and that Mr. D delivered the message to Ms. B as requested by Mr. A.

The Supreme Court also agreed with the second trial's judgment.

The court stated, "Considering the relationship between Mr. C, Mr. D, and the victim Ms. B, it cannot be said that there is strict proof by the prosecution necessary to recognize publicity."

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