The Case: Was "You Seem Like a Really Nasty Person" a Crime?
The Korean Supreme Court
recently handed down an insult-law ruling that caught a lot of people's
attention. Here's what happened.
The defendant sent a KakaoTalk
message to employees, pointing out problems at a workplace the victim managed.
In that message, the defendant wrote: "The branch chief of the ○○○ chapter
of the Korean Confederation of Trade Unions seems like a really nasty
person." The lower court found that this statement amounted to a public
insult of the victim.
Supreme Court of
Korea, Case No. 2019Do7370, decided August 31, 2022
The trial court had agreed
that this statement counted as criminal insult. The Supreme Court disagreed,
reversed the decision, and sent the case back down. In doing so, it laid out
the following legal standard:
Article 311 of the Criminal Act
punishes insult in order to protect a person's “external honor” — meaning
society's evaluation of that person's character. “Insult,” under this
provision, means expressing an abstract judgment or a contemptuous feeling capable
of damaging someone's external honor, without stating any actual fact about
them. Whether a statement rises to the level of criminal insult should not be
decided by how the listener personally felt — whether it hurt their feelings or
offended their sense of dignity. Courts must instead judge the question
strictly and objectively: looking at the relationship between the parties, the
circumstances that led to the statement, how it was phrased, and the situation
at the time, to determine whether it was, objectively, capable of harming the
other person's external honor.
Supreme Court of
Korea, Case No. 2019Do7370
An individual's right to protect
their honor as part of their personal dignity, and freedom of expression as a
foundational right of democracy, are both constitutional rights, and each must
be protected in a way that does not crowd out the other. Courts must therefore
weigh both personal dignity and freedom of expression together when
interpreting and applying the elements of criminal insult.
Supreme Court of
Korea, Case No. 2019Do7370
In short, the Supreme
Court concluded that calling someone "a really nasty person" was
nothing more than a mild, abstract expression of a negative or critical
opinion. It fell well short of the kind of statement that could be said, with
any confidence, to damage the victim's external honor.
Reading this ruling, I
found myself thinking about a few things.
More Lawsuits, Less Patience
As a practicing lawyer, a
large share of the criminal cases I handle involve insult or defamation
complaints. It's common to see someone hear a critical comment made about them
in front of others and immediately start talking about filing a criminal complaint
for defamation or insult. I suspect this Supreme Court ruling was, in part, an
attempt to put the brakes on that trend. When the Court says that personal
dignity and freedom of expression must be weighed together, I read that as a
warning: a rude or unpleasant comment, on its own, should not automatically be
treated as a criminal matter.
In my years of practice,
I've noticed that people seem to have less patience than they used to. In the
past, it was common for people to let a frustrating or upsetting comment go
rather than escalate it. Looking back, that restraint was often the wiser choice
in the long run.
A Client I Tried to Talk Out of Suing
This ruling brought back
the memory of a case I once handled. My client wanted to pursue a defamation
claim over a post someone else had written — a post that criticized a certain
person without naming them. My client was convinced the post was about them.
I urged caution. Since the
writer never used my client's name, I explained, a third party reading that
post would have no way of knowing it was directed at my client — even if my
client themselves recognized it immediately. I also pointed out, more than once,
that pursuing the matter could easily make things worse rather than better. My
client wasn't persuaded. They went on to hire a different lawyer, one willing
to file the complaint on their behalf.
Litigation Eats Up Your Life — Think Before You Sue
Time passed, and the case
grew far larger than my client had expected. They eventually reached out to me
again, this time expressing regret over having filed the complaint at all. I
reminded them, plainly, that I had advised against it from the start and had
warned more than once that things could spiral. My client didn't dispute any of
that.
But underneath the regret,
I sensed something else — a quiet resentment that I hadn't tried harder to stop
them. I have to draw a firm line there. Standing beside a client and physically
holding them back from a decision they're determined to make isn't something a
lawyer can do — that role belongs to family, not to counsel.
As far as I know, that
case still hasn't been resolved. If my client had only managed their initial
anger a little better, they might never have had to pour so much of their time
into litigation.
Many people don't take
litigation seriously enough going in. But preparing a case and showing up in
court again and again takes an enormous amount of time and energy. If you have
better things to do with your limited time, my advice is to leave litigation to
the professionals and stay a step removed from the process yourself wherever
you can — and better still, if you can avoid starting a lawsuit in the first
place, that's the choice that will save you from wasting a piece of your life.
I realize this might sound
like an odd thing for a lawyer to say. The common assumption is that lawyers,
who earn their living from clients who file cases, would naturally encourage
more litigation. In my experience, it's often the opposite — I find myself
talking clients out of lawsuits more often than into them. As this Supreme
Court ruling shows, a rude or unpleasant comment doesn't automatically lead to
criminal punishment. If you can hold your temper for just a moment, that
patience may turn out to be what protects your time — and your life — in the
end.
