Case Summary and Outcome

The Constitutional Court of Korea ruled that the suspension of indictment imposed on the claimant for alleged defamation of a public official violated their constitutional rights to equality and the pursuit of happiness. The case arose from the claimant’s online dissemination of a video criticising the President, which prosecutors deemed defamatory under the Act on Promotion of Information and Communications Network Utilization and Information Protection. The Court found that the claimant’s actions were in the public interest and that their expression was protected under the right to freedom of expression. It ruled that the prosecution’s decision was an arbitrary exercise of discretion, leading to an unjustified restriction on expression. As a result, the suspension of indictment was revoked.

Facts

The claimant, Kim Ik, was subjected to a suspension of indictment by the Seoul Central District Prosecutors’ Office on 30 October 2009 for allegedly violating the Act on Promotion of Information and Communications Network Utilization and Information Protection (Defamation).

The accusation stemmed from the claimant’s posting of a video on an online forum, which contained critical remarks about the then-President’s policies and alleged misconduct. The video in this case contained the following statements: “The victim is a criminal with 30 prior convictions, and the reason they are implementing the large canal project is that they own significant land in the planned development area. Additionally, the victim sells state-owned enterprises in the canal area for personal gain.”

The prosecution decided to suspend the indictment after considering that, although the facts supported the allegation, the complainant was a first-time offender who did not produce the video himself but merely posted it on his personal blog, which was visited by only a small group of acquaintances and is now shut down.

Under Korean law, a suspension of indictment is a discretionary prosecutorial decision to defer prosecution despite having sufficient evidence to file formal charges, effectively placing the case on hold without dismissing it outright. While it does not equate to an acquittal, it means the case remains unresolved unless reopened by the prosecution. However, it can still have negative consequences, such as appearing on background checks.

The claimant sought to lift the suspension of indictment by challenging it before the Constitutional Court, asserting that the prosecution’s decision infringed upon their rights to equality and the pursuit of happiness, as well as their freedom of expression.

Decision Overview

The Constitutional Court, in a unanimous decision, found that the prosecution’s decision was unconstitutional. The Court framed the key issue as whether the claimant’s act of posting a video criticising the President and government policies constituted a legitimate exercise of freedom of expression or an unlawful act of defamation under Korean law.

The claimant argued that the video addressed matters of public interest, focusing on criticism of government policies rather than attacking the President personally. They contended that the video was produced for public interest purposes and that they lacked knowledge of any falsehoods in the content. The claimant also emphasised that the video was posted on a personal blog with limited access, and that their intent was not to defame but to engage in public discourse. On the other hand, the prosecution argued that the video contained false statements, including allegations of past criminal conduct and improper decision-making for personal gain, which harmed the President’s reputation. The prosecution asserted that the claimant was at least aware of the inaccuracies in the video and that the manner of expression demonstrated an intent to defame.

The legal basis for the case was Article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, which states that “any person who defames another person by openly pointing out false information through an information and communications network with intent to defame the person shall be punished by imprisonment for not more than seven years, suspension of qualifications for not more than ten years, or by a fine not exceeding 50 million won.” The Court also considered Article 21 of the Korean Constitution, which guarantees freedom of expression but allows for restrictions in cases where such expression infringes on another person’s honour or rights.

In its reasoning, the Court emphasised the importance of balancing freedom of expression with the protection of reputation, particularly in cases involving public officials and matters of public interest. The Court noted that statements about public figures, even if critical, should be broadly protected to allow for robust democratic debate, unless they are made with clear malice or reckless disregard for the truth. The Court applied a multi-step test to determine whether the expression constituted protected speech.

The Court first examined whether the statements in the video concerned public affairs, including government policies and presidential conduct. It found that the video primarily criticised the President’s policies, such as the large canal project and real estate policies, which were matters of significant public interest. The Court held that such criticism, even if harsh, falls within the realm of protected speech under the Constitution.

The Court then assessed whether there was sufficient evidence to establish an intent to defame the President. It concluded that the claimant’s primary motive was to engage in public discourse rather than to harm the President’s reputation. The Court also examined whether the claimant merely referenced the video or actively controlled its content. The Court noted that the claimant did not create the video but merely posted it, and there was no evidence of malicious intent.
Finally, the Court evaluated whether the claimant was aware that the video contained falsehoods. It found that although the video included inaccuracies, such as allegations about the President’s criminal record and land ownership, the claimant lacked awareness of their falsity. The Court noted that the claimant reasonably believed the information to be true based on media reports and public discourse at the time.

The Court also acknowledged international standards, noting that restrictions on public interest speech should be interpreted narrowly. It cited previous Korean Constitutional Court and Supreme Court decisions, which have consistently upheld the importance of robust political discourse in a democratic society. The Court highlighted that in cases involving public figures, the threshold for proving defamation should be higher to ensure that legitimate criticism is not stifled.

In conclusion, the Court ruled that the prosecution’s allegation against the complainant for committing statutory defamation and the subsequent investigation, which ultimately led to the suspension of indictment, constituted an excessive and unjustified restriction on the claimant’s freedom of expression. The Court held that the prosecution’s decision was based on a serious error in fact and law, amounting to an arbitrary exercise of prosecutorial discretion. Consequently, the suspension of indictment was revoked.