No-Referral Decision in a Defamation and Obstruction of Business Complaint Arising from Online Comments

Our Law Firm, Hwaum, represented by Attorney Jae-kwon Jung, defended a client who had been accused of obstruction of business and defamation arising from comments posted online. After challenging the police's initial recommendation to refer the case to the prosecution and requesting a reinvestigation, our firm successfully obtained a no-referral decision on the grounds that there was no criminal suspicion.

Overview of the Case

A favorable post about instructor B at Academy A was published on an online college admissions information community. Instructor A, who worked at the same academy, suspected that the post had been written by a paid promoter and instructed teaching assistants to post comments that appeared to disparage B's teaching ability and the quality of B's lectures. Fewer than ten comments were at issue.

B subsequently filed a criminal complaint against A, alleging a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection (defamation), insult, and obstruction of business.

Our Response

Defamation

With respect to the alleged violation of the Information and Communications Network Act (defamation), our firm argued that the comments were not false and did not contain specific factual allegations concerning the complainant. Rather, they constituted criticism or expressions of opinion and therefore did not amount to the dissemination of false facts.

Insult

With respect to the allegation of insult, our firm relied on Supreme Court precedent holding that an expression does not constitute the crime of insult where it does not lower the social evaluation of the other person's personal character, even if the expression was made in a somewhat impolite manner (Supreme Court Decision, September 10, 2015, Case No. 2015Do2229).

Our firm argued that the comments at issue were merely expressions of the author's opinions or emotions and did not lower the complainant's social evaluation. Accordingly, the elements of the crime of insult were not satisfied.

Obstruction of Business

With respect to the allegation of obstruction of business, our firm argued that, in order for obstruction of business by deceptive means to be established, the factual statements at issue must be false and the accused must have known that they were false when making them.

Our firm further argued that the comments in this case were merely expressions of opinion and that recruiting students did not constitute part of the instructor's business activities. Accordingly, the comments could not be regarded as having interfered with the complainant's business.

Decision of the Investigative Authorities

The police accepted the arguments presented by the defense counsel and issued a no-referral decision with respect to both the allegations of defamation and obstruction of business.

The prosecution subsequently determined that there was no criminal offense established with respect to the alleged violation of the Information and Communications Network Act (defamation), and that there was insufficient evidence to establish the alleged offense of obstruction of business.

Author: Attorney Jae-kwon Jung