Defamation & Online Defamation

Many people think they are fine because they did not lie. However, Criminal Act Article 307(1) also punishes stating true facts, and the Constitutional Court has upheld this provision as constitutional (Constitutional Court Decision 2017헌마1113 and others, February 25, 2021).

However, if the facts are true and solely in the public interest, there is no punishment (Criminal Act Article 310). For posts related to the public interest, such as a review written to warn other consumers, the defense focuses on this point. Whether you wrote only verifiable facts such as dates, amounts and what was said, and whether you mixed in personal attacks, weigh heavily in the decision.

Defamation requires publicity (공연성). The Supreme Court maintains that even if you told only one or two people, publicity can be found if those people were likely to pass it on to others (Supreme Court en banc Decision 2020도5813, November 19, 2020).

On the other hand, if you only told family members or someone in a relationship of confidentiality, the possibility of spreading may be denied. You need to set out specifically whom you told, in what setting and in what relationship.

Posts on blogs, online cafés, social media and review boards are often investigated under Article 70 of the Information and Communications Network Act. This provision punishes only where there is intent to disparage, and if the main motive of the post was the public interest, the decision may lean toward finding no such intent.

Even if you did not use a real name, the victim is considered identified if people around them can recognize who it is from the company name, job title, neighborhood or photos combined. Even if you deleted the post, screenshots usually remain, so secure the original text first.

Defamation under both the Criminal Act and the Information and Communications Network Act is a crime that cannot be prosecuted against the victim's wishes (반의사불벌죄). If the victim states that they do not want punishment, prosecution is not allowed. This can be done until the first-instance judgment is pronounced, and once stated it cannot be withdrawn (Criminal Procedure Act Article 232(3)).

If there is strong ground to dispute the charge, it may be wiser to first argue public interest and identifiability in a written opinion rather than rushing into a settlement. Which way to go is decided after looking at the original post and the surrounding circumstances.