Supreme Court: "I don't understand why a person divorced from her husband attended the Dangsan Festival" is an expression of opinion... "Not defamation"

Mentioning the Fact of Divorce Itself Does Not Constitute Defamation

Supreme Court, Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that even if a village chief said to a third party that he did not understand why a divorced woman attended the Dangsanje ritual held in the village, it does not constitute defamation against the divorced woman.

For defamation to be established, there must be a statement of verifiable specific facts. In this case, the court found that the statement was merely a negative value judgment or evaluation regarding the divorced woman’s attendance at the Dangsanje ritual, and thus did not constitute a statement of fact.

The Supreme Court’s Third Division (Presiding Justice Kim Jae-hyung) overturned the lower court’s ruling that found A (58) guilty of defamation and sentenced him to a fine of 1 million won, and remanded the case to the Busan District Court on the 30th.

The court stated, "The lower court’s ruling contained an error in the legal principle distinguishing between statements of fact and expressions of opinion in defamation cases, which affected the judgment. The grounds for appeal pointing this out are justified."

A, who serves as the village chief of G-dong, Sasang-gu, Busan, said on January 8, 2019, during a phone call with resident autonomy committee member B regarding the dismissal of a resident autonomy committee member, that there was a rumor that divorced people attending the Dangsanje event bring bad luck. He told B, "At yesterday’s Dangsanje event, C, who is divorced from her husband, also attended, and there were many negative comments among the attendees."

Additionally, the next evening at a restaurant in Sasang-gu, during a dinner gathering with 7 to 8 residents including former resident autonomy committee chairman D, A said something to the effect of, "I don’t understand why a divorced person like C came to the Dangsanje."

The prosecution charged A with defamation against C.

The first trial court found A guilty of defamation and sentenced him to a fine of 1 million won. The court reasoned that if only the fact of divorce had been mentioned, defamation would not be established, but since A’s remarks contained criticism of the divorced woman C attending the Dangsanje, it constituted defamation.

The court stated, "Simply conveying the value-neutral fact of divorce itself, without mentioning the circumstances or reasons for the divorce or responsibility for the breakdown of the marriage, does not constitute defamation given the current social atmosphere where negative evaluations of divorce or remarriage have largely disappeared."

It added, "Expressions such as 'There are many negative comments about a divorced person attending the Dangsanje' or 'I don’t understand why a divorced person came to the Dangsanje' include not only objective facts about the divorce but also negative expressions or criticism of the divorced person, which can infringe on the social value or evaluation of the divorced person and thus sufficiently constitute defamation."

The second trial court also upheld the first trial court’s judgment.

A’s side appealed, arguing as in the first trial that "A said, 'There is a rumor that people who do not live here, divorced people, or people who carry knives attend the Dangsanje. Because of that, I am troubled,' but this was to convey residents’ opinions and did not mention C by name." They claimed the first trial court misinterpreted the facts.

However, the court pointed out that ▲ A initially testified during the prosecution investigation that he did not know about C’s divorce and only learned it through D after talking with B, but later reversed his statement under continued questioning by the prosecutor, saying he knew about C’s divorce before the call with B ▲ A initially testified that he never apologized to C for revealing the divorce, but after being presented with a recording of his apology, he reversed his statement, saying he apologized to C because of the remark about divorced people attending the Dangsanje, showing inconsistency in his testimony. The court concluded, "It can be reasonably recognized that the defendant made statements to the effect that 'C is divorced,'" rejecting A’s claims.

Regarding A’s claim that the first trial court misunderstood the law, the court found no problem with the first trial court’s judgment that "If only the fact of divorce itself was mentioned, defamation would not be established, but A’s remarks included content that could infringe on the social value or evaluation of divorced C, thus constituting defamation."

However, the Supreme Court’s judgment differed.

First, the court stated, "For defamation to be established, there must be a statement of fact, and the stated fact must be sufficiently specific to potentially infringe on a person’s social value or evaluation."

It added, "According to the records, the defendant (A) called resident autonomy committee member B and explained that B had to be dismissed from the committee because B had moved residence. During this explanation, he said, 'There is a rumor that people who do not live in Sasang-gu, divorced people, etc., attend the Dangsanje. Because B does not live here, he had to be dismissed,' making statements similar to those in the indictment."

The court concluded, "In light of these facts, the defendant’s remarks do not constitute a statement of specific facts infringing on the victim’s (C’s) social value or evaluation, but rather are expressions of opinion regarding the victim’s participation in the Dangsanje."

The court explained the reasons as follows.

First, the court stated, "The facts the defendant stated about the victim in this case are that 'the victim is divorced' and 'the victim participated in the Dangsanje.'"

It continued, "With social development and changes in family life, public perception of the institution of marriage has evolved, and negative perceptions and evaluations of divorce are gradually disappearing. Considering these changes, merely mentioning the fact of divorce without referring to the circumstances, reasons, or responsibility for the breakdown of the marriage cannot be seen as lowering the victim’s social value or evaluation." This was also acknowledged by the first and second trial courts.

Furthermore, "The fact that the victim participated in the Dangsanje is a value-neutral fact in itself and is unlikely to infringe on the victim’s social value or evaluation," the court added.

Finally, the court stated, "The defendant made the remarks based on the premise that there is a perception among residents that divorced people attending the Dangsanje bring bad luck, expressing dissatisfaction with the divorced victim’s participation in the Dangsanje. Considering the background and content of the remarks, this was not to state specific past facts about the victim but to express a negative value judgment or evaluation regarding the victim’s attendance at the Dangsanje because she is divorced."

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