Spreading of False Information | Supreme Court Holds That Raising Suspicions About a Campaign Pledge, Even if Exaggerated, Does Not Constitute Publication of False Facts

This was a case in which the key issue was whether the raising of suspicions amounting to the spreading of false information involved false facts.

The defendants served as policy committee chairs of the election campaign committee for the mayor of L City, and during the campaign they were responsible for preparing and supporting the candidate's pledges, policies, and debates.

Non-party 1 was a competitor of the mayor of L City and, at the time of the election, was a figure engaged in a close contest with the mayor of L City in terms of approval ratings.

While preparing for a debate during the campaign period, the defendants learned that Non-party 1 owned land in an area that was not adjacent to G Park but lay within the same township unit, and that the date of acquisition of ownership fell within the period during which Non-party 1 served as the head of the forestry cooperative and as chair of the committee for the local festival.

Accordingly, the defendants resolved to publish or post the content that ‘Non-party 1, while serving as the head of the forestry cooperative and as chair of the festival committee, purchased land around G Park for speculative purposes, and furthermore, if elected mayor, intends to elevate G Park to a national garden for speculative purposes.’

Accordingly, the current mayor of L City made statements to the above effect at radio and TV debates, and the defendants produced and distributed press releases and card news containing that content.

However, in the case of G Park, the project to make it a national garden was not pursued until 2016.

The land purchase by Non-party 1 alleged by the defendants was in fact land that Non-party 1's mother had purchased in 1973 and then gifted in 2005, and the project to make G Park a national garden was not pursued until 2016.

In other words, the suspicion of speculative purposes raised by the defendants was a false fact.

Nevertheless, the defendants caused voters to perceive, as if it were true, that the opposing candidate Non-party 1 had purchased land around G Park for speculative purposes and that Non-party 1's election pledge to pursue the elevation of G Park to a national garden also arose from speculative purposes, thereby publishing false facts unfavorable to the opposing candidate Non-party 1.

Unlike the lower court, which found the defendants guilty on the ground that the conduct constituted the spreading of false information, the Supreme Court held that it did not constitute the spreading of false information prohibited by the Public Official Election Act and reversed the second-instance judgment.

The Supreme Court took the view that, in order to determine whether a given expression constitutes the publication of false facts as defined by the Public Official Election Act, one must first establish the meaning of that expression.

Precedent provides that ‘even if there is somewhat exaggerated expression, it cannot be regarded as a false fact, and that, with respect to an expression in which opinion and fact are intermingled, one must determine, viewing it as a whole, whether facts were published.’ (See Supreme Court, Decision of March 12, 2009, 2009 Do 26; Supreme Court, Decision of August 13, 2015, 2015 Do 7172, among others.)

The Supreme Court took the view that, where several expressive acts were carried out at different times and places, whether each constitutes the crime of publishing false facts must be examined act by act.

Whereas the lower court reached its determination by considering the content expressed in the statements at the radio debate and the TV debate in this case, the Supreme Court held that, because each statement was made in a different place, before a different range of voters, and through a different medium, the TV debate statement and the radio debate statement had to be assessed separately.

The Supreme Court held that the statement by the mayor of L City could be understood to mean that Non-party 1 was suspected of putting forward the pledge to elevate the park to a national garden for the purpose of pursuing private interests.

Putting forward policy pledges in an election, or criticizing and scrutinizing them, opens a forum for communication and public discourse between candidates and voters through the medium of policy pledges and thereby shapes the election into an arena of policy competition, allowing representative democracy to function in substance, so expressions that present policy pledges or criticize and scrutinize them need to be protected more broadly.

In addition, in the case of the TV debate, the mayor of L City made the statement under circumstances in which Non-party 1 had been given an opportunity to rebut or explain, and the card news and press releases also amounted, ‘as a whole,’ to an expression of opinion, so the Supreme Court held that one could not impose punishment for the crime of publishing false facts on the basis of some expressions that were contrary to the truth or exaggerated.

Considering that Non-party 1 could easily have rebutted and explained that the acquisition was a gift rather than a sale but did not do so, the Supreme Court held that the portion concerning the cause of acquisition of the land, which was recognized as false, was merely an incidental and peripheral part that could not sway the judgment of voters, so it was difficult to conclude that this alone constituted the crime of publishing false facts.

Nevertheless, because the lower court had held that the conduct constituted the publication of false facts for the reasons stated in its judgment alone, the Supreme Court found that there was an error in the legal doctrine and decided to reverse and remand the case.

This was a case in which the key issue was whether raising suspicions about a candidate's pledge constituted the spreading of false information.

The publication of a ‘fact’ under the Public Official Election Act is a concept opposed to an expression of opinion that consists of a value judgment or evaluation, and it means a report or statement concerning a temporally and spatially specific past or present factual relationship.

Whether an expression is one for which criminal punishment is at issue must be assessed in light of the ordinary meaning and usage of the language, the possibility of proof, the context in which the words at issue were used, the overall purport of the expression, the circumstances of the expression, and its social context, all on the basis of the constitutional freedom of expression.

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