The Constitutional Court has ruled to cancel the prosecutor's decision of suspension of prosecution, which recognized the charge of defamation under the Information and Communications Network Act against a fan who commented on an online article about former rhythmic gymnast Son Yeon-jae.
The court stated that judging the 'purpose of defamation' based solely on 'some expressions' extracted from the comments sent by the police without reviewing the entire comments was an arbitrary exercise of prosecutorial power that infringed on the basic rights of the fan.
According to the legal community on the 8th, the Constitutional Court unanimously accepted the constitutional complaint filed by Mr. A, who received a suspension of prosecution for defamation by stating false facts under the Information and Communications Network Act.
The court ordered, "The suspension of prosecution decision made by the respondent (prosecutor) against the petitioner infringed upon the petitioner's rights to equality and pursuit of happiness, and thus is canceled."
Mr. A, who was preparing for the bar exam, posted a comment on August 24, 2016, on an internet news article titled
The article covered Son Yeon-jae's remarks at a ceremony and press conference held at Incheon Airport after returning from the Rio Olympics in Rio de Janeiro, Brazil, where she achieved the highest Korean rhythmic gymnastics record by finishing fourth overall.
Mr. A posted a comment on the article on the Nate internet portal site saying, "Now, the beneficiaries of the score manipulation by the Viner group..." and was investigated on charges of defaming Son Yeon-jae with false information.
In June 2022, Son Yeon-jae filed a complaint under the Information and Communications Network Act for defamation against unidentified individuals who posted 364 comments. During the police investigation, Son stated, "The 364 defamatory materials can be classified into eight types, among which there is a type alleging bribery and match-fixing to achieve results during her athletic career. International competitions have a system that prevents bribing judges, and I have no such involvement. Nevertheless, defamatory comments alleging bribery and match-fixing were posted without any basis whenever competition results were announced, damaging my reputation."
On August 24, 2016, at the Millennium Hall of Incheon International Airport in Incheon Metropolitan City, Son Yeon-jae, a rhythmic gymnast, is answering questions from the press at the 2016 Rio Olympics South Korean delegation send-off ceremony.
The police officer from the Seongnam Sujeong Police Station, who initially investigated the case, obtained a search warrant from the court and confirmed that the nickname of the commenter who wrote "Now, the beneficiaries of the score manipulation by the Viner group..." was Mr. A's. The case was then transferred to the Busan Saha Police Station, which has jurisdiction over Mr. A's residence.
On March 3, 2023, Mr. A appeared at the police station and stated, "It has been a long time, so I need to check the comment again, but the nickname is mine." He also explained, "I am a fan of Son Yeon-jae and know that Viner was her coach. I had no intention to defame Son Yeon-jae."
On March 14 of the same year, the police called Son Yeon-jae to ask if a person named Viner was her coach, and Son replied that "Viner never directly coached me."
Based on this, the police judged that the comment "Now, the beneficiaries of the score manipulation by the Viner group..." written by Mr. A specified concrete facts, and since Mr. A could not provide exact evidence whether Son Yeon-jae was a beneficiary of score manipulation, the suspicion was recognized. On March 14, 2023, Mr. A was sent to the Busan Western District Prosecutors' Office without detention with a recommendation for prosecution on defamation charges under the Information and Communications Network Act.
Mr. A filed an objection with the Busan Saha Police Station on March 17, 2023. He wrote, "Please review the comment again. How can such a short phrase be interpreted as meaning that the complainant benefited from the Viner group? Please provide a convincing reason. Even if I am punished, I believe the punishment should be based on the entire content of my comment. Punishment based on only part of the comment is unacceptable."
In response, the Busan Saha Police Station replied on March 23, 2023, "According to consistent Supreme Court precedents, if the content of the expression and surrounding circumstances collectively indicate that it points to a specific person and lowers their social evaluation or constitutes contemptuous expression, a crime is established. The Busan Western District Prosecutors' Office will re-examine the criminality and legal aspects of the defamation case sent to them."
The prosecutor at the Busan Western District Prosecutors' Office, who received the case, issued a suspension of prosecution against Mr. A on March 30, 2023, without additional investigation.
A suspension of prosecution is a disposition by a prosecutor when the facts are recognized but prosecution is deemed unnecessary considering various circumstances. Although it is a type of non-prosecution disposition, it leaves a record that the suspect was found to have committed the offense during investigation. The Constitutional Court's position is to recognize the right to relief through constitutional complaint when a suspect who should have received a 'no charges' or 'not guilty' disposition instead receives a suspension of prosecution.
Mr. A filed a constitutional complaint with the Constitutional Court on May 30, 2023, stating, "As a fan of the complainant, I posted the comment to honor her reputation. However, the respondent arbitrarily judged that I had the 'purpose of defamation' based only on some extracted expressions without investigating the full content of my comment, infringing on my rights to equality and pursuit of happiness by issuing the suspension of prosecution."
The Constitutional Court first considered whether it was meaningful to cancel the suspension of prosecution when the statute of limitations had already expired, i.e., whether the constitutional complaint met the requirement of 'protection of rights and interests.'
The court stated, "The statute of limitations for the alleged facts was completed on August 23, 2023, after the suspension of prosecution decision, so it is questionable whether the constitutional complaint seeking cancellation has the right to protection of rights and interests."
The court explained, "When a suspect who received a 'suspension of prosecution' from a prosecutor disputes the facts and claims innocence by filing a constitutional complaint, even if the court accepts and cancels the disposition, the statute of limitations for the facts has already been completed, so the prosecutor will likely issue a 'no charges' disposition."
It added, "Unlike suspension of prosecution, which is a substantive judgment recognizing the facts, 'no charges' is merely a formal judgment that there is no prosecutorial right, and thus 'no charges' is a more favorable disposition for the suspect. Therefore, the right to protection of rights and interests to seek cancellation of the suspension of prosecution is recognized, and the complaint is admissible."
Next, the court examined whether the prosecutor's suspension of prosecution against Mr. A was lawful.
First, the court noted, "At the time the petitioner wrote the comment, the news article had comments both supporting and criticizing the complainant in a contentious manner."
It continued, "Although the petitioner repeatedly insisted to the investigative authorities that the entire comment should be reviewed to determine criminality, the respondent issued the suspension of prosecution without reviewing the full comment. The petitioner then obtained the full comment from Nate customer service and submitted it as evidence to the Constitutional Court."
The full comment posted by Mr. A, as disclosed by the court, was: 'Now, let's say Son Yeon-jae is the beneficiary of score manipulation by the Viner group. Shin OO also studied abroad in Russia for 3,000 a month, but why were the results so poor? Also, there was a Japanese player Ri OO in the Russian delegation this time, but if Viner was so omnipotent, why couldn't he get that player into the finals?'
The comment was difficult to interpret as an attack claiming Son Yeon-jae benefited from score manipulation by the Viner group. Rather, it could be understood as refuting the claim that Son Yeon-jae benefited from Viner by citing examples of other athletes managed by Viner who failed to reach the Rio Olympic finals.
The court concluded, "Considering the news article's content, the situation of related comments at the time, and the full comment written by the petitioner, it can be seen that ▲ after the conclusion of the 31st Rio de Janeiro Olympics in 2016, a press conference was held for the returning athletes, and the complainant's interview was published as a news article ▲ in the related comments on that article, support and criticism of the complainant were being debated ▲ the petitioner used the phrase 'Now, the beneficiaries of the score manipulation by the Viner group' in the context of supporting the complainant and asserting that she was not a beneficiary of score manipulation."
It added, "Given these circumstances, it cannot be concluded that the petitioner had the intention or purpose to harm the complainant's reputation, and thus there was no 'intent to defame' the complainant."
Finally, the court stated, "Nevertheless, the respondent judged the 'purpose of defamation' based only on some extracted expressions sent without sufficient investigation of the full comment, leading to the suspension of prosecution. This constitutes an arbitrary exercise of prosecutorial power based on significant investigative negligence and serious legal error, infringing on the petitioner's rights to equality and pursuit of happiness."
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