국가의 명예훼손 소송에 대한 영미법적 고찰 ∶서울중앙지법 2010. 9. 15. 선고 2009가합103887 판결의 분석을 중심으로

The Seoul Central District Court rendered a judgement in a case involving a defamation action by government in 2010. In the Case, government brought a action for damages for defamation against an citizen in respect of an magazine article in which he disclose abusing the authority by NIS(National Intelligence Service). On a issue as to whether the plaintiff had a cause of action against the defendant, the court held that it is the rule of law that the government cannot maintain an action for defamation. However, the court provided the exception to the rule, holding that if the statement was made with 'malice', or if the statement was defamatory attack which was conspicuously unreasonable, the government can recover damages for defamation. This article, while appreciating the judgement's significance as establishing the rule that government cannot maintain the action for defamation, points out that it made an error in providing the exception to the rule. First, it is difficult to say that the government has any reputation of its own which could be the subject of defamation. It may be called not the government's reputation but the credibility of the government in the exercise of its powers of sovereignty while it brings actions for defamation alleging damages to its reputation. There are many mechanism to enhance the credibility of the government, for example, the right to reply. However, the civil remedy of defamation may not be the means of the government to do it. Second, the freedom of political speech, the right to discuss the government is fundamental right, therefore the very elaborate balancing process should be mandated. The protection of the government “reputation” is not a sufficiently important object to justify restriction to political speech by civil actions. This article concludes that the defamation actions by government cannot maintain actions for defamation without exception. It is of the highest public importance that a democratic government should be open to public criticism, and it is the most important of a democratic government to keep persuading to seek the support of people.