명예훼손죄의 ‘공연성’ 의미와 판단 기준

Abstract

There was a media report that ‘school violence #MeToo’, which has become a social movement recently, would be likely to affect the decision of unconstitutionality of defamation by statement of fact, in the future. In fact, the crime of defamation by statement of fact (Article 307(1) of the Criminal Act) was criticized at the onset of the #MeToo campaign as many perpetrators used it as a means to make a counterclaim against the victims who reported the sexual abuse or harassment they had endured by the former. This provision received attention again when the administrator of Badfathers, an online site which discloses the personal information of parents who do not pay child support after divorce, was charged with defamation. Through a series of happenings, calls for abolishing defamation by statement of fact has been growing even more. Nevertheless, the Constitutional Court of Korea made a decision on February 25, 2021 that Article 307 Paragraph 1 of the Criminal is not in violation of the Constitution. It was for the first time in the last five years since the Court determined the constitutionality of this provision in a case of statement of fact-defamation by using information and communication networks, in February 2016. Although, compared to the 2016 decision, the number of judges who voted for unconstitutionality of the provision increased to four this time (of nine judges, seven voted for constitutionality, and two for unconstitutionality of the provision), the majority maintained their previous view that the provision is constitutional, and their position does not seem to change in any time soon. Therefore, instead of focusing on the prediction of (un)constitutionality of Article 307(1) of the Criminal Act, this paper would attempt to examine the matter of application of the crime itself. In particular, while there is a sharp contrast between the popular view and the precedents toward ‘publicity’, one of the key elements that constitute the crime of defamation, on November 19, 2020 the Supreme Court made its position clear that it upholds the theory of ‘possibility of dissemination’ as before, despite the long-standing criticism by academics. In the following, this paper will examine the meaning of ‘publicity’, an element to constitute the crime of defamation, based on the precedents, and discuss the standard of determination.