The Supreme Court has ruled that a YouTuber who broadcasted a face of a person with whom they had a hostile relationship by superimposing a toad on it was guilty of the crime of insult.
The ruling states that even if nonverbal and visual means are used instead of verbal means, if the expression conveys an abstract judgment or contemptuous emotion that lowers a person's social evaluation, the crime of insult is established.
According to the legal community on the 21st, the Supreme Court's 3rd Division (Presiding Justice Lee Suk-yeon) upheld the original court ruling that sentenced insurance YouTuber Lee (52), who was indicted on multiple charges including defamation, obstruction of business, and insult under the Information and Communications Network Act, to 1 year and 2 months in prison.
Regarding the most contentious issue of the crime of insult, the court cited a Supreme Court ruling from February last year, stating, "There is no limitation on the means and methods of insult, so even if nonverbal and visual means are used instead of verbal means, if it conveys an abstract judgment or contemptuous emotion that lowers a person's social evaluation, the crime of insult is established." The court pointed out, "With the recent advancement of video editing and synthesis technology, the possibility of insult crimes using composite photos is increasing, and even insults using only visual means cause harm to the victim and have the same degree of punishability as those using verbal means."
The court stated, "Regarding the insult part of the indictment against victim A in this case, considering that the defendant and the victim had a hostile relationship by slandering each other on their respective YouTube broadcasts, and that the defendant had continuously expressed the victim as a 'toad' on his YouTube broadcast for five months before the crime, belittling the victim's appearance or slandering and mocking the victim, the defendant's act of superimposing a toad photo on the victim's face on the YouTube broadcast is considered to have conveyed an abstract judgment or contemptuous emotion that lowers the victim's social evaluation by using nonverbal and visual means, thus constituting insult," the court explained.
It continued, "Based on the lawfully adopted evidence, it can be seen that the defendant did not use the toad photo to cover the victim's face but used it as a means to intentionally insult and convey contemptuous emotions that lower the victim's social evaluation. Therefore, the original court's judgment is acceptable, and there is no error in dismissing the defendant's appeal by violating the rules of logic and experience or misunderstanding the law regarding the establishment of the crime of insult," explaining the reason for dismissing Lee's appeal.
Lee, who runs a YouTube broadcast related to insurance, was indicted in September 2020 for insulting victim A, with whom he was in a dispute and mutual slander, by posting a video on YouTube that superimposed a toad on A's face. It was found that Lee had been likening A to a toad for several months prior.
Lee also faced charges of repeatedly committing defamation, insult, and obstruction of business against A and several other victims.
The first trial court found most of Lee's charges guilty and sentenced him to 1 year and 6 months in prison with a 3-year probation.
However, the court acquitted Lee of the charge of insulting A by superimposing a toad on A's face during the broadcast.
In the trial, Lee claimed that he used the toad photo only to cover A's face and had no intention to insult.
At that time, the court acknowledged, "It is recognized that the defendant superimposed a toad photo on A's face while posting A's broadcast video," but judged, "However, merely covering A's face with a toad photo without other insulting expressions is insufficient to recognize that the defendant insulted A."
However, the second trial court's judgment was different.
The second trial court found Lee guilty even of the insult charge against A, which the first trial court had acquitted, overturned the first trial court's ruling, and sentenced Lee to 1 year and 2 months in prison.
The court stated, "The original court's ruling that acquitted the insult charge contains an error in understanding the law on the crime of insult, which affected the judgment."
The court first cited the Supreme Court ruling on the establishment of the crime of insult.
The Supreme Court previously stated, "Insult means expressing an abstract judgment or contemptuous emotion that lowers a person's social evaluation without stating facts, and this should be judged comprehensively based on the relationship between the actor and the victim, the circumstances leading to the actor's statement, the number of statements, the meaning and overall context of the statements, the place where the statements were made, and the circumstances before and after the statements."
Also, the Supreme Court said, "There is no limitation on the means and methods of insult, so even if nonverbal and visual means are used instead of verbal means, if it conveys an abstract judgment or contemptuous emotion that lowers a person's social evaluation, the crime of insult is established."
Furthermore, the court considered the following facts: ▲ both Lee and A operated YouTube channels broadcasting insurance-related content and had a hostile relationship by criticizing or slandering each other on their broadcasts ▲ Lee had continuously likened A to a 'toad' on his YouTube broadcast since around April 2020 ▲ Lee claimed he used the toad photo to cover A's face, but the thumbnail photo of A's YouTube broadcast showing A's face was displayed at the beginning of the broadcast ▲ if Lee had intended only to cover A's face, common methods such as mosaic processing would have sufficed, but he deliberately superimposed the toad photo on A's face, which he had been using continuously, thus showing intent to insult.
The court pointed out, "The defendant has continuously likened the victim to a 'toad' on his YouTube broadcast since around April 2020. Examining the specific expressions used by the defendant, such as 'There is a XX that looks like a toad, a very bad XX,' 'The toad is garbage,' 'Don't just hide like a toad XX, you toad, I might just roll you over with a roller and burst your insides,' it is clear that these expressions belittle the victim's appearance or slander and mock the victim."
Lee appealed, but the Supreme Court found no problem with the second trial court's judgment.
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