소비자의 권리행사로서의 표현과 정보통신망법상 명예훼손죄의 성립여부 - 대법원 2012. 11. 29. 선고 2012도10392 판결 -

Abstract

Article 124 of the Constitution provides that the State shall guarantee the consumer protection movement intended to encourage sound consumption activities and improvement in the quality of products. Furthermore, Article 4 of Framework Act On Consumers identifies eight consumers' rights including the right to be provided with the knowledge and information necessary for selecting goods, and the right to have their opinions reflected in policies, which are inevitably based on freedom of speech. However, a comsumer who may want to exercise his or her right of free speech to express dismay in public by posting a negative review on the Internet will provoke a defamation lawsuit. Under article 70 of Act On Promotion Of Information And Communications Network Utiization And Information Protection, criminal sanctions might be imposed on consumers' reviews, in case that the review has negative effects on the reputation of a business or an operation. In 2012, Supreme Court of Korea ruled that all the matters - especially the consumer's right and public interest - should be considered in determinating whether the purpose of slander, or malice, exists or not in a defamation case against a consumer's review. The decision confirms the importance of freedom of speech on the Internet although a business entity doesn't want what’s being talked about. In order to determine whether a consumer’s expression is a defamatory statement or not, criminal courts have to put the burden of proof entirely on the prosecutor or the business entity according to this decision. Therefore, the risks that consumers face defamatory sanctions could be minimized even if the reviews have negative effects on the reputation of a business or an operation. Under this Supreme Court decision, the number of Strategic Lawsuit Against Public Participation (“SLAPP”), which has been prevailing in Korea, is expected to decrease as a result.