Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The Constitutional Court of Korea rejected a challenge to the constitutionality of the Criminal Act which imposes sanctions of imprisonment or a fine for insulting an individual in public. The Court reasoned that the Act pursued a legitimate purpose by attempting to protect individuals from being publicly insulted and that the means to achieve the purpose struck an appropriate balance between the restriction on freedom of expression and protection of reputation because the prohibition was limited to statements seen by a majority of people, the punishment was relatively small, and insulting statements made online can have significant consequences. The Court also found that the term “insult” within the text of the Act was not ambiguous nor void for vagueness.
The complainant was charged with violating the Act on Promotion Information and Communications Network Utilization and Information Protection because he posted defamatory statements about the defendant on a website and blog. The trial court imposed a fine of three million South Korean won pursuant to Article 311 of the Criminal Act which reads:
“Article 311 (Insult)
A person who publicly insults another shall be punished by imprisonment or imprisonment without prison labor for not more than one year or by a fine not exceeding two million won”.
The complainant appealed the decision to the Court of Appeals and the Supreme Court, who both denied review. The complainant then filed a case with the Constitutional Court requesting review of the constitutionality of the Act. The Constitutional Court denied the review and the complainant lodged a second appeal with the Constitutional Court.
The Court found that Article 311 did not violate freedom of expression and was not void for vagueness.
The main issue in this case was the constitutionality of the provision of the Criminal Act which states that “[a] person who publicly insults another shall be punished by imprisonment or imprisonment without prison labor for not more than one year or by a fine not exceeding two million won.” The complainant argued that the provision was void for vagueness because an “insult” is too abstract for a reasonable person to ascertain what it entails. Secondly, the complainant argued that insults are subject to subjective interpretations and can encompass speech that is protected under freedom of expression, and therefore the Act lacked a legitimate purpose.
The Court acknowledged that the provision did restrict speech by infringing on fundamental freedom of expression rights. However, it found the Act was not void for vagueness because the dictionary definition and decisions of the Supreme Court have adequately defined “insult” in a objective way so a reasonable person would understand what is and what is not subject to punishment.
The Court then turned to the issue of whether the Act infringed on the right to freedom of expression, which requires the Court to carry out a balancing exercise between the restraint on fundamental rights and the legitimate purpose served by the Act. The Court noted that insults, especially in the internet age of information that is easy to disseminate, have the potential to damage an individual’s reputation and role in society and said that the Act pursued a legitimate purpose by attempting to regulate this issue. However, it said that the means to achieve the purpose must ensure appropriate proportionality between the restriction on freedom of expression and the protection of reputation. In this case the Court found that the means of achieving the purpose were proportionate because the prohibition was limited to statements seen by a majority of people, the punishment was relatively small, and insulting statements made online can have significant consequences.
Three of the Justices dissented, stating that the provision did not meet the least restrictive means test. The dissenting opinion noted that criminalizing the act of insulting someone publicly, necessarily catches constitutionally protected speech, and argued that these types of limitations should be limited to actions that cause specific serious harms such as words tending to incite violence, as recognized in the United States. The dissent also found the definition of insult to be overly broad, and argued that criminalizing insulting words is a violation of international human right standards. Therefore, the dissenting opinion asserted that the insult provision was unnecessarily vague and did not meet the least restrictiveness test.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression because it allows for potentially constitutionally protected speech to be criminalized. The term insult in the Act is too broad and although there is an important interest in protecting against the tort of defamation, this interest should not outweigh freedom of speech interests. This was the opinion of three dissenting Justices in this case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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