During a gathering where the boss was absent, a subordinate employee told two colleagues that "the boss is having an affair." In such cases, could they also be punished for defamation? The Supreme Court's judgment states, "If no active measures were taken to prevent the words from spreading to others, it could be guilty."
The Supreme Court's third division (Chief Justice Eom Sang-pil) announced on the 22nd that it has confirmed a sentence of six months in prison with a one-year probation for 30-year-old Army non-commissioned officer A on charges of violating the Military Criminal Act (defamation of superior through false statements). The sentence from the first trial was upheld in both the second and third trials.
A was indicted for allegedly defaming his superiors, B and C, while drinking with two officers from the same unit in January 2022. At that time, A and others had a gathering in an apartment located in Naegok-dong, Seocho-gu, Seoul. During this gathering, A told the other attendees, "Chief Warrant Officer B and Officer C are like that," implying that B and C were in an affair. As this information reached B and C, A faced a military trial.
During the trial process, A argued that his statements made at the gathering did not possess 'publicness' and therefore did not constitute defamation. He contended that defamation requires that the remarks be known to unspecified or a large number of people, which was not the case in his situation. A stated, "There were only three people, including me, at the gathering, and it took place in a closed location, an apartment," adding, "The publicness required for defamation is lacking."
However, the court did not accept A's argument. The first trial court, the military court, found A's statements guilty and sentenced him to six months in prison with a one-year probation. A appealed, but the second trial court, the Seoul High Court, reached the same conclusion.
The Seoul High Court stated, "A talked about the rumors that B and C were having an affair, which were already circulating among their affiliated unit, to multiple fellow officers," and asserted, "The content A mentioned has the potential to spread to unspecified or numerous people."
Additionally, the court noted, "There is no evidence that A took active measures to prevent his statements from spreading to others," and posited, "This can be recognized as having an underlying intent to allow the spread of the rumors."
The third trial Supreme Court reached the same conclusion. It stated, "There was no error in misinterpreting the legal principles regarding the establishment of the crime of defamation of a superior that affected the judgment," confirming A's six-month prison sentence with a one-year probation.
Meanwhile, another officer who was with A at the gathering was also indicted on charges of defaming a superior for allegedly making hand gestures describing sexual acts and saying, "Aren't B and C obvious?" and received a guilty verdict.