공적 인물의 정치적 이념에 관한 표현행위와 불법행위책임 -대법원 2018. 10. 30. 선고 2014다61654 전원합의체 판결의 평석을 중심으로

Abstract

In Korea, freedom of expression and the personal right are equal in principle. In a defamation lawsuit, the Supreme Court of Korea has sought to solve the conflict between both fundamental rights by adopting the balancing-of-interests approach on case-by-case basis. On the other hand, in view of the need to ensure freedom of speech and expression in democratic political systems, the Supreme Court has developed legal doctrines that promote freedom of expression in certain cases. The most representative theories are the ‘opinion/fact dichotomy’ and the precedent theory for expanding freedom of the press and publication in defamation cases in the public sphere. This article is about the Supreme Court en banc Decision (No. 2014Da61654, October 30, 2018), which has two main issues. The first was whether the act of referring to a politician as a “jongbuk” (The original meaning of ‘jongbuk’ is uncritical followers of the North Korean regime) or a “Juche (Self-Reliance) ideologist” (‘Juche’ is the official state ideology of North Korea) in Twitter or media reports was a defamatory statement of fact or just an expression of opinion. The second issue was whether the illegality of the statement could be denied by the doctrine protecting the freedom of expression regarding statements that criticize the political ideology of public figures. On the first issue, the Court ruled that referring to someone as negative expressions such as “jongbuk” or “Juche ideologist” does not necessarily mean defamation, and in that case, judges should take into account not only the meaning of the language but also the social status of the plaintiff and the defendant, meaning of the words in context and broader social context of the statement to determine if the expressions are defamatory. Applying such criteria, the Court found that the writings of the defendants were not defamatory because they were merely expressing opinions or raising suspicions with specific circumstances. And on the second issue, the Court reaffirmed previous doctrine, which strictly limited the defamation liability for statements concerning political ideology of public officials or public figures, and held that, in light of that doctrine, the defendants’ writings were not illegal. Another issue was raised in the above decision, which questioned whether the defendants’ writings could be liable for torts by opinions due to personal rights infringement, even if not for defamation. In addition, while the majority opinion, based on the ‘marketplace of ideas’ theory, argued that courts should refrain from intervening in political debates and imposing legal responsibilities on critics of politicians, the minority opinion, based on the position that hate speech should be regulated, argued that defendants’ writings were beyond the limits of freedom of expression. This decision is significant in that the Supreme Court has increased the freedom of expression in statements about the political ideology of public figures. Its ruling is likely to be a guide in similar cases in the future.