[According to the Law of Expediency] 61. The Issue of Proving Defamation by False Facts

*This content was translated by AI.

It is common for malicious false reviews to be posted online, causing significant damage to the reputation and sales of individuals, hospitals, and businesses.

From the victim's perspective, it is natural to feel anger, thinking, "That's a lie, so why isn't it punished?" However, when filing a criminal complaint, one often unexpectedly encounters a barrier. This is the legal hurdle that law enforcement authorities (in practice, at the complaint stage, the complainant) must prove the "lie" beyond reasonable doubt.

When filing a criminal complaint for defamation by false facts under Article 307, Paragraph 2 of the Criminal Code, the complainant must prove three main elements. First, that a "fact" (not an opinion) that lowers social evaluation was stated; second, that the fact is objectively "false"; and third, that the defendant stated it while being aware of its falsity. All three elements are the responsibility of law enforcement authorities (in substance, the complainant), and if the standard of proof beyond a reasonable doubt is not met, the case is typically not prosecuted or the prosecutor decides not to file charges.

Here, the most difficult practical issue is the second element: proving "falsity."

This is because it requires proving the non-existence of a fact. The Supreme Court has recognized this difficulty and established special legal principles. While a prosecutor can prove that a specific act did not occur at a specific time and place, proving the non-existence of an unspecified fact that is not concretized in an unspecified time and space is practically impossible under general social norms.

Accordingly, judicial precedents adjust the burden of proof substantively. The defendant, who claims the fact is not false, must first present explanatory materials that suggest the fact exists, and the prosecutor can then prove falsity by impeaching the credibility of those materials. If the explanatory materials are merely rumors or are not presented at all, the defendant may be held criminally liable.

There is a case where this legal principle was actually applied in judicial precedents. In a case where printed materials stating "There is no specialist" and "It is a scam hospital" were posted at a plastic surgery clinic, the court confirmed that the clinic actually employed a plastic surgery specialist and that the defendant himself had undergone surgery with that specialist, thereby recognizing the statement as defamation by false facts.

There are two points I wish to emphasize based on my practical experience. On the victim's side, objective evidence supporting "falsity" should be secured to the maximum extent possible before filing a criminal complaint. Materials that can actively prove the existence of a fact will determine the success or failure of the investigation. Conversely, consumers who write reviews or comments online must be mindful that stating facts they have not personally experienced or unverified rumors as facts can make them subject to criminal punishment.

The boundary between falsity and truth is judged by whether "the important parts correspond to objective facts." Exaggeration of minor details or slight differences do not constitute falsity, but if the core content differs from the facts, it is false. It is necessary for both the writer and the victim to accurately understand this standard, which balances freedom of expression and protection of reputation.

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*This content was translated by AI.