명예훼손에 관한 미국의 현실적 악의 법리 및 실질적 진실 법리 고찰

Abstract

The substantial truth doctrine has been adopted by the United States Supreme Court as the constitutional standard of truth and falsity in defamation law. In the U.S., truth is a complete defense to a defamation charge but a defendant does not have to prove the literal truth of a defamatory statement to prevail. An effective defense can rely on the substantial truth doctrine. Under the substantial truth doctrine, a defamatory statement is First Amendment-protected if it is factually similar to the pleaded truth and differs from the truth by no more than immaterial details. A statement differs from the pleaded truth “by no more than immaterial details” if the statement does not harm the plaintiff's reputation more than would the truth by viewing it through the eyes of the average recipient. On the other hand, in Korea, truth is not a complete defense to a defamation charge. Even if she proved the literal truth of a defamatory statement, the publisher may be held liable if the contents of the statement are not related to publicity. In a defamation action, freedom of speech and protection of reputation inevitably come into conflict. Both rights must be accommodated, because [n]either the right to be free from critical speech, nor the right to criticize is absolute. The Korea Supreme Court has resolved this tension by developing a barring-illegality jurisprudence peculiar to defamation law. The barring-illegality jurisprudence consists of three justifications, including truthfulness of the statement. Therefore, the truthfulness alone could not exonerate any truthful defamer. However, a truthful defamatory statement merely deprives the publisher of a reputation that she was not entitled to in the first place. Accordingly, in connection with truthful defamatory statement, the Supreme Court doesn't need to take reputational integrity into consideration any longer. All the Supreme Court needs to do is to enhance freedom of speech. For this reason, the barring-illegality jurisprudence need to be amended. Unlike substantial truth doctrine, actual malice standard adopted by the United States Supreme Court doesn't seem not to be fit to Korean social reality and legal system. For some undemocratic characteristics still remain in media companies in Korea, and it is very difficult for plaintiff to demonstrate the actual malice of publisher under the Korean civil procedure.