A blogger who wrote that a politician was a sexual minority has been definitively acquitted of defamation. The Supreme Court said, however, that disclosing someone's sexual orientation can amount to defamation depending on the content, manner and context of the expression.
The first division of the Supreme Court, with Justice Chun Dae-yeop as lead judge, recently upheld a lower court ruling acquitting the defendant, identified as A, who had been indicted on defamation charges, legal sources said on the 22nd.
A was indicted for posting on a personal blog in August 2021 that B, the head of a civic group and a politician affiliated with a political party, viewed men as enemies because of a sexual orientation as a lesbian.
The trial court fined A 3 million won. It found that the post came closer to content intended to damage B's social reputation and therefore did not qualify as an act for "the public interest" under Article 310 of the Criminal Act. Even though B had disclosed that sexual orientation in an internal group chat room, the court said, that belonged to the private sphere and it was difficult to regard B's sexual orientation as a matter of public concern that the general public needed to know.
The appellate court reached a different conclusion. It found that the post amounted overall to A's expression of subjective opinion and could hardly be treated as a statement of fact. The term "lesbian" itself is a value-neutral concept indicating a sexual orientation, the court said, and on its own cannot be regarded as an expression that lowers social esteem.
The appellate court also ruled that A's post was in the public interest and thus not punishable. Article 310 of the Criminal Act provides that defamation by statement of fact is not punished when the statement is true and solely in the public interest.
The Supreme Court said parts of the appellate court's finding that the term "lesbian" does not lower the victim's social esteem were inappropriate. The court began from the premise that the word refers to a homosexual woman and is value-neutral, and that homosexuality, like heterosexuality, is one natural sexual orientation. Even so, it said, given the negative perceptions and prejudices about homosexuality that still exist in society, such expression may infringe on a victim's social worth or esteem depending on its content, manner and context.
"The post, based on negative perceptions and prejudices about homosexual people, revealed that the victim is homosexual and presented the conclusion that the victim therefore regards all men as enemies," the Supreme Court said. "It contains expression that risks infringing on the victim's social worth or esteem."
The court nonetheless found the appellate ruling sound in holding that A's post was chiefly aimed at the public interest and so could not be deemed unlawful. As a politician affiliated with a political party, B had pursued political activity on gender equality while arguing that other members of society held distorted views on sex, the court said, so B's views on gender equality were closely tied to public activity, and freedom of expression for scrutinizing or criticizing them needed to be broadly recognized.
The Supreme Court said there was room to view A's conduct as intended to contribute to the formation of public opinion and to open debate on gender conflict, a matter of public concern. "For the free formation and transmission of public opinion in a democratic state, freedom of expression in this area must be guaranteed to the fullest," it said.
