Court Decision on ‘Bad Fathers’ Case Reveals the Excessiveness and Unconstitutionality of the Truth Defamation: Open Net Urges the National Assembly to Abolish Criminal Truth Defamation Law Immediately

On January 4, 2024, the Supreme Court, Division 2 (Chief Justice Chun Dae-yup, presiding), confirmed the conviction (with a suspended sentence of a fine of 1 million won) of Mr. Koo Bon-chang for violating the Act On Promotion Of Information And Communications Network Utilization And Information Protection (defamation) for his involvement in the operation of “Bad Fathers”, a site that discloses the identities of parents who have not paid child support.

Open Net Korea is deeply disappointed by the decision, considering it a ruling that exposes the excessive and unconstitutionality of “truth defamation”, which criminalizes all activities that report wrongdoings of others, severely restricting freedom of expression.

The court acknowledged that Koo’s activities were more for slanderous purposes than for public benefit, given that the primary purpose of the site was “to quickly and indirectly compel payment of child support through private pressure, which is a form of private sanction,” that the harm to the child support obligor from the disclosure of his or her identity was significant, that the victims were not public figures or public officials who must tolerate reasonable criticism of themselves, and that the fact that a person failed to pay child support was not itself a matter of public concern.

However, the purpose of ‘indirectly enforcing child support payments through disclosures’ is a ‘public interest’ purpose that the country also pursues by directly ‘institutionalizing’ the publication of the list of non-payers under the current Act On Enforcing And Supporting Child Support Payment. In addition, the issue of child support payment is a public social problem that is experienced by many members of society and is a matter of public concern beyond the issue of personal debts and liabilities and is a public issue that is connected to the children’s rights to survival. If the purpose of the website was to resolve the nonpayment of child support and to ensure the survival of a large number of children, it must be considered that it was to contribute to the public interest, not for self-interest or to slander an individual. In fact, “Bad Fathers’ has solved nearly 900 cases of non-payment for three years and, as a social movement it has brought public attention to the non-payment of child support, leading to the 2021 revision of the Act On Enforcing And Supporting Child Support Payment, which strengthened sanctions against child support non-payment, including identity disclosure, license suspension, and travel restrictions.

In the first trial, conducted as a jury trial, all seven jury members and the court unanimously acquitted Gu, recognizing the public interest in his activities and the absence of the element of “defamation” required for the charge of defamation under the Information and Communications Network Act (Case No. 2019-Gohap-425). However, the Supreme Court disregarded this public sentiment and narrowly interpreted the public interest, leading to a guilty verdict for Gu.

The conflicting judgments surrounding Bad Fathers illustrate how the concept of “public interest” that determines the legality of “factual defamation” can be abstract and unclear, subject to the discretion of the judges. The Constitutional Court previously argued in its constitutional review decision on factual defamation that acts performed with a “public interest” motive should not be subject to punishment, thereby minimizing restrictions on freedom of expression. However, this ruling reveals that the concept of “public interest” is unpredictable and ambiguous, unable to prevent an unjust chilling effect on freedom of expression, and cannot offset the unconstitutionality of factual defamation.

Any reputation that might be damaged by the discovery of a “true” fact is merely a “false” reputation, a reputation gained by concealing the truth. By criminalizing truth-telling to protect the false or exaggerated reputations of parents who have threatened the survival of their children by failing to pay child support, this decision demonstrates the overreach and unconstitutionality of the “factual libel statute” by criminalizing speech that may have a compelling public purpose by helping to spur efforts to improve child support policy and substantially secure the survival of many children. This will severely curtail various surveillance and whistleblowing activities in society, such as the #MeToo movement and exposures of sexual harassment and abuse, in which powerless individuals seek to reveal their victimization, the truth, and call attention to the parties and society.

Last year, the United Nations recommended that South Korea decriminalize “defamation” per se, and has already recommended the abolition of truth defamation. Given the exposure of the excesses of truth defamation in this ruling, the National Assembly should promptly pass bills to amend and abolish truth defamation under the current Criminal Act Act On Promotion Of Information And Communications Network Utilization And Information Protection in line with international recommendations.

2024. 1. 4.
Open Net Korea

Korean text available here