Kang Yong-seok and Kim Se-ui, who appeared on the YouTube channel 'Garosero Research Institute' (Gaseyeon) and claimed that Cho Min, the daughter of Cho Guk, leader of the Cho Guk Innovation Party, drove a red Porsche sports car, were acquitted of defamation charges.
Driving a foreign car is generally a subject of envy or jealousy rather than content that infringes on social value or evaluation as defamation. Moreover, considering the entire content reported via email, the court found it difficult to conclude that the two had awareness of falsehood.
On the 12th, the Supreme Court's First Division (Presiding Justice No Tae-ak) dismissed the prosecutor's appeal in the final appeal trial of Kang and Kim, who were indicted for defamation under the Information and Communications Network Act, thereby confirming the lower court's verdict of acquittal.
The court explained the reason for dismissing the appeal, stating, "There is no error in the lower court's judgment that violates the rules of logic and experience or exceeds the limits of free evaluation of evidence, nor is there a misinterpretation of the legal principles regarding the establishment of defamation under the Information and Communications Network Act and defamation."
The two were tried on charges of stating false facts on the Gaseyeon broadcast in August 2019, ahead of the confirmation hearing for Cho Guk, then Minister of Justice nominee, by revealing a photo of a Porsche parked at Pusan National University Medical School and claiming that Cho Min drove a red sports car.
Cho Min appeared as a witness in the first trial and said, "I have never driven a foreign or sports car," adding, "My father drives a domestic car, but it was difficult to see the perception online that his daughter, who is not good at studying, drives a foreign car."
The first trial court acquitted the two.
The court stated, "The false fact alleged in each count of this case is that 'the victim drove a red Porsche or a foreign car.' However, the expression that the victim drove a foreign car is value-neutral, so even if the fact of driving a foreign car is false, from the perspective of an average person in society, it cannot be concluded that there is any difference in social value or evaluation compared to the truthful fact that the victim drives an Avante." It further judged, "It is difficult to conclude that the fact of driving a foreign car infringes on the victim's social value or evaluation beyond the victim's subjective sense of honor."
During the trial, the prosecutor argued, "If it is known that a public official's family drives a foreign car, it may give the impression that the official is not clean, and also that the victim, who is both a public official's family member and a student, has a tendency toward extravagance, so these statements constitute defamatory facts against the victim."
However, the court rejected this, stating, "While these statements may be considered defamatory expressions concerning the integrity of the public figure Cho Guk, it is difficult to view them as defamatory expressions against the victim. Moreover, even if the victim, as a public official's family member, may be perceived by others as having 'extravagant tendencies' due to these statements, it is difficult to conclude that such expressions degrade the victim's social value or evaluation."
Furthermore, the court concluded, "Even if these statements are considered defamatory expressions against the victim, ▲ these statements were made while raising various suspicions about Cho Guk, a public figure and nominee for Minister of Justice, including his qualifications and wealth formation, so suspicions about the victim's driving of a foreign car, as a family member, are also matters of public interest related to Cho Guk ▲ it is reasonable to consider the victim as a public figure rather than a mere private individual in relation to public interest ▲ broad criticism and suspicion must be tolerated regarding public interest matters, and there was actual reporting to support these suspicions. Therefore, even if the defendants' statements are false, it is difficult to conclude based solely on the evidence submitted by the prosecutor that the defendants had awareness of falsehood or intent to defame."
The prosecutor appealed, but the second trial court's judgment was the same.
The court pointed out, "Driving a foreign car may be a subject of envy or jealousy, but it is difficult to see it as defamation. Unlike asset declarations, even if understood as driving a foreign car, the overall purpose or intent of the statements is reasonably considered to be about the father, who was a public office candidate at the time."
It added, "The email reported as a tip contains specific content that would be difficult to know unless one is a student or related person at the same school as the victim, and most of that content turned out to be true. Although the victim filed complaints about all these matters, only the small part concerning the foreign car was prosecuted. Therefore, there is no illegal misjudgment of facts as claimed by the prosecutor."
Meanwhile, the prosecution, during the second trial, maintained the defamation charge under the Information and Communications Network Act, for which the first trial acquitted the defendants, as the principal charge, and added a charge of defamation by false facts under the Criminal Act as an alternative charge.
However, the court judged, "This charge ultimately seeks a judgment on defamation by false facts under Article 307(2) of the Criminal Act. Except that the intent to defame is excluded from the elements, it shares the main issues with the principal charge. As examined in the principal charge, it is difficult to see it as defamatory speech or that the defendants had awareness of falsehood."
Meanwhile, Kim Yong-ho, who was indicted along with the two, was acquitted in the first trial but passed away on October 12 last year during the appeal trial, leading to dismissal of the prosecution.
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