Supreme Court Overturns and Remands Not Guilty Verdict for YouTuber's "Go See a Hospital" Insult Charge

The Supreme Court has ruled that a YouTuber who said to another YouTuber, with whom he had a scuffle while broadcasting in front of former President Park Geun-hye's residence, "You should go to the hospital. You need to get some counseling," cannot be held liable for the crime of insult.

For the crime of insult to be established, it is not enough that the expression simply hurts the other party's feelings; it must be strictly examined whether the expression objectively infringes on the external honor of the other party.

According to the legal community on the 28th, the Supreme Court's 3rd Division (Presiding Justice Eom Sang-pil) overturned the original ruling that sentenced YouTuber A, who was charged with insult, to a fine of 2 million won and remanded the case to the Daegu District Court.

Supreme Court, Seocho-dong, Seoul.

The court stated, "The statement in this case expresses negative and critical opinions or feelings toward the victim and is a rude expression that may cause discomfort to the victim, but it is difficult to consider it as insulting language that objectively lowers the social evaluation of the victim's personal value," adding, "Nevertheless, the original court's judgment that the statement constitutes insult under Article 311 of the Criminal Act contains an error in the legal interpretation of the meaning of insult under criminal law, which affected the judgment," explaining the reason for reversal and remand.

YouTuber A, who operates the YouTube channel Daebak News TV, was brought to trial on charges of insulting YouTuber B (female), who was broadcasting on the opposite side, while broadcasting on the roadside in front of former President Park Geun-hye's residence in Yuga-eup, Dalseong-gun, Daegu, on March 23, 2022.

The two had differing political views and were not on good terms. During A's broadcast, B, who was nearby, made disruptive remarks, leading to a scuffle.

During the incident, A said to B, "B, this is not something I'm saying to you, so shut up. The police officers are watching, but can you say that woman is normal?" In response, B said, "Shut up? You're the one who's not normal." Then A said, "You should go to the hospital. You need to get some counseling. It's quite serious. B, that B is a woman who supported C (a politician)."

The first trial court found A guilty of insult and sentenced him to a fine of 2 million won.

A appealed, claiming, "I had no intention to insult B. At that time, my remarks were merely a sincere suggestion for B, who kept mocking and belittling Representative Jo Won-jin of the Our Republican Party, to receive appropriate treatment through counseling with a psychotherapist."

However, the second trial court stated, "The defendant, a YouTuber with about 30,000 subscribers, made the statement 'Is that normal? You should go to the hospital. You need to get some counseling. It's quite serious,' to the victim who was broadcasting on the opposite side on the roadside in front of former President Park's residence where many people were gathered. This act is reasonably considered insulting language that directly targets the victim and expresses abstract judgment or contemptuous feelings that lower the social evaluation of the victim's personal value," rejecting A's claim.

The prosecutor applied for and was granted a change in the indictment during the second trial, excluding the part "That B is a woman who supported C (a politician)." Following the change in the indictment, the second trial court ex officio overturned the first trial's ruling and again sentenced A to a fine of 2 million won.

However, the Supreme Court's judgment differed. Unlike the previous first and second trial courts, the Supreme Court found that A's remarks at the time did not meet the requirements for the establishment of the crime of insult.

First, the court cited Supreme Court precedents regarding the requirements for establishing insult.

Previously, in 2015, the Supreme Court stated, "The crime of insult under Article 311 of the Criminal Act is a crime that protects the legal interest of 'external honor,' which means the social evaluation of a person's personal value. 'Insult' here refers to expressing abstract judgment or contemptuous feelings that may infringe on a person's external honor without stating facts," and added, "Whether an expression constitutes insult should not be judged based on the subjective feelings or emotions of the other party, such as whether the other party feels bad upon hearing the expression, but should be strictly judged based on objective circumstances such as the relationship between the parties, the circumstances leading to the expression, the method of expression, and the situation at the time, to determine whether the expression may infringe on the external honor of the other party."

At that time, the Supreme Court also stated, "If an expression is not one that seriously infringes on an individual's personality rights or is not a hateful insult that humiliates the other party's personality, but is merely rude and impolite to the extent that it may cause discomfort or expresses negative or critical opinions or feelings toward the other party with mild abstract expressions or curses, it cannot be considered an expression that infringes on external honor and thus does not meet the elements of the crime of insult unless there are special circumstances."

Regarding A's actions, the court said, "At the time of the statement, both the defendant and the victim were broadcasting on the roadside. They had different political views and were not on good terms. During the defendant's broadcast, the victim nearby made disruptive remarks, leading to a scuffle, after which the defendant made the statements as charged," and added, "Considering these facts, the relationship between the defendant and the victim as recognized by the records, the circumstances leading to the defendant's remarks, the meaning and degree of the remarks in the overall context, and the circumstances before and after the remarks in light of the above legal principles, the statements in this case express negative and critical opinions or feelings toward the victim and are rude expressions that may cause discomfort, but it is difficult to consider them as insulting language that objectively lowers the social evaluation of the victim's personal value."