The Constitutional Court unanimously decided to cancel the decision to suspend prosecution against a person who commented, "That's just blatant fraud," on an article stating that a celebrity is returning after the so-called behind-the-scenes advertising controversy. The suspension of prosecution acknowledges criminal charges, but the prosecutor delays filing a complaint for several reasons.
According to the legal community on the 1st, the Constitutional Court decided to cancel the suspension of prosecution that infringed on Mr. Choi's rights to equality and pursuit of happiness in the constitutional complaint he filed. This decision was unanimously supported by all seven justices.
On August 25, 2021, Mr. Choi left a comment saying, "It was way too blatant fraud, what can I say," on an article titled "Behind-the-scenes advertising controversy: Han Hye-yeon returns to YouTube" posted on an internet community site.
Stylist and broadcaster Han Hye-yeon was embroiled in controversy for engaging in behind-the-scenes advertising around 2020, leading her to suspend her activities on her YouTube channel. Behind-the-scenes advertising refers to promoting products while receiving expenses from advertisements or sponsorships without disclosing the fact that it is an advertisement. About a year later, Han announced that she would resume her YouTube activities.
In September 2021, Han filed a defamation complaint against 39 people, including Mr. Choi, who commented on her return article. Mr. Choi reportedly stated during the police investigation, "I once took her word for it that she was honestly evaluating the products she purchased, but it turned out to be an advertisement." He also said, "I expressed my opinion impulsively because she said she would exercise restraint and then announced that she would resume broadcasting. I had no intention to insult."
The Incheon District Prosecutor's Office, Bucheon branch, issued a suspension of prosecution against Mr. Choi for defamation in January 2022. They concluded that the defamation charges themselves were acknowledged. In response, Mr. Choi filed a constitutional complaint with the Constitutional Court, arguing that his basic rights were violated due to the erroneous decision and requested to cancel the suspension of prosecution.
The Constitutional Court ruled that Mr. Choi's comment could not be punished as a defamation crime under criminal law. Defamation under criminal law applies to cases where someone publicly insults another person. According to Supreme Court precedents, defamation involves expressing abstract judgments or contemptuous feelings that can diminish a person's social evaluation without factual basis. Even if it falls under defamation, there are precedents stating that if it is based on objectively valid facts and used to emphasize the validity of one's judgments and opinions by using somewhat insulting expressions, it cannot be punished.
The Constitutional Court stated, "Mr. Choi's comment can be seen as merely a critical opinion or minor abstract expression containing negative feelings regarding Ms. Han's past indirect advertisements." It added, "It is difficult to see that it has reached the level of degrading the social evaluation of Ms. Han's personal value." Furthermore, "Many viewers who watched Ms. Han's broadcast shared similar thoughts to Mr. Choi and left critical comments, and Mr. Choi's expressions do not appear excessively insulting or malicious, thus it can be viewed as not unlawful."