[In-Depth Review] Implications of the Constitutional Ruling on 'Defamation by Fact Statement'

On the 25th of last month, the Constitutional Court ruled that Article 307, Paragraph 1 of the Criminal Act, which stipulates the crime of defamation by stating facts, does not violate the Constitution. This provision punishes individuals if they damage another person's honor even when stating facts. The justices' opinions were split 5 (constitutional) to 4 (unconstitutional).

Personally, this is a disappointing conclusion. Various issues have been raised regarding the crime of defamation by stating facts. The scope of punishment is broad, and as a result, freedom of expression is infringed upon. Ultimately, this criticism argues that even healthy voices of criticism are suppressed. In fact, there have been unjust punishment cases, such as being penalized for "going to the perpetrator's workplace and stating the fact of sexual assault." Even if not punished, there are many cases where people have been prosecuted or sued on the grounds of defamation by stating facts. There is a risk that even the "voice of public interest," which is essential in our society, could be punished.

There has also been progress. In 2016, the Constitutional Court ruled that the punishment provision for defamation by stating facts through information and communication networks was constitutional. At that time, the justices' opinions were split 7 (constitutional) to 2 (unconstitutional). This recent decision has taken a step further toward unconstitutionality. The constitutional opinion cited the need to punish expressions related to "private matters such as an individual's hidden medical history, sexual orientation, and family affairs" as an important basis for constitutionality. The unconstitutional opinion proposed that limiting the scope of punishment to such expressions alone would be sufficient. Opinions largely converged on the scope where punishment is truly necessary. This serves as a "milestone" for future discussions aimed at reducing the problems of the crime of defamation by stating facts.

This decision suggests that this system will not continue in its current form. The fact that the unconstitutional opinion is nearly half indicates that there is already a "crack" in the social consensus that "defamation by stating facts" should be punished. Other systems with a significant number of unconstitutional opinions have eventually followed the path of abolition due to the impact of such "cracks." For example, the adultery law, which was ruled constitutional 6:3 in 1990, went through three constitutional rulings before finally being declared unconstitutional 2:7 in 2015. The abortion law underwent a similar process and was declared unconstitutional in 2019. The military detention system and protective custody system were abolished by the National Assembly following the impact of minority opinions in the Constitutional Court pointing out their unconstitutionality. It can be anticipated that the crime of defamation by stating facts will follow the same course.

For this reason, investigative agencies and courts must take this decision seriously. It is difficult to deny that investigative agencies and courts have contributed to the harms caused by the crime of defamation by stating facts. There have been numerous cases of unjust prosecution or guilty verdicts related to this crime, and such judgments have sometimes been overturned in higher courts. They overlooked the fact that a crack already exists in the social consensus regarding the crime of defamation by stating facts.

Considering the high likelihood that this system will not continue in its current form, broad punishments and prosecutions like before will find it even harder to gain legitimacy. Fundamental improvements to the system will likely come through legislative amendments by the National Assembly or rulings by the Constitutional Court, but investigative agencies and courts also need to deeply consider how to operate this system until then.

Lee Sang-hyun, Lawyer, Duroo Corporation