Moments of intense emotion are not uncommon when playing online games. Many users, unable to contain their brief anger, lash out with harsh words in the chat window. As it's widely known that using profanity in public chat can lead to penalties or lawsuits, there's a rise in 'clever' tactics where individuals, to avoid the scrutiny of other players, resort to hurling abuse solely through private whispers or direct messages.

"Whispers are just between us, so I can't be sued no matter what I say, right?" Is that really true? In this precedent.zip, we will conduct an in-depth analysis through actual court rulings on the legal issues surrounding in-game whispers, specifically whether an individual can be punished for defamation by sending abusive private messages to an internet broadcaster (BJ/streamer) who is being watched by numerous viewers.

First, let's examine the legal standards for one-on-one whispers between general users. To get straight to the point, the applicable laws vary entirely depending on the content of the chat.

What if you exchange sexually explicit insults or make statements that cause shame via whisper? In such cases, 'transmitting obscene material via communication media,' commonly known as Tongma-eum, applies, and even in a one-on-one chat room with only two people present, you will be subject to punishment without exception. This is because Tongma-eum does not require 'publicity' (a state where it can be perceived by an unspecified or large number of people) as a condition for establishing the crime from the outset.

On the other hand, simple insults, 'pad-rip' (insulting parents), or spreading false information that does not involve sexual content presents a slightly different situation. In these cases, the crimes of insult or defamation, which are typically the issues, unlike Tongma-eum, require 'publicity' to be met for the crime to be recognised. A one-on-one whisper is a private space where only you and the other party are present, and an unspecified number of people cannot see its content. Therefore, as a general rule, publicity is denied, making it very difficult to lead to punishment. This is precisely why cunning malicious commenters actively use whispers as a legal shield.

As we've seen, publicity must be proven for crimes of insult or defamation to be established. Publicity, as defined by law, means a state where it can be perceived by an unspecified or large number of people. According to our courts' consistent principle, when an offender sends abusive messages via one-on-one whispers or private messages to a victim, publicity is denied if there is no possibility of it spreading to a third party.

A recent court ruling has clarified this. A recent appellate court decision (2024No3678) by the Seoul Central District Court involved a defendant who sent insulting messages about a third party during an impromptu, temporary one-on-one conversation with an acquaintance online. Although the prosecution charged the defendant with insult, the court acquitted the defendant.

The court pointed out, "The fact that the statement was made only to a specific few can be a strong indication that publicity is denied, and therefore, strict proof by the prosecution regarding the possibility of dissemination under such circumstances is essential."

Furthermore, it was acknowledged that in this case, it was difficult to anticipate that the recipient of the problematic abusive message would directly convey it to the victim. Ultimately, the court ruled that it was difficult to consider that the message had the potential to spread to an unspecified number of people, or that the defendant had the inner intention to tolerate such a risk, and thus confirmed the acquittal.

However, if this one-on-one chat is being broadcast live on the internet, the situation changes 180 degrees. Even if the system technically operates as a whisper between two people, the moment it is exposed on the broadcast screen, the court views the communication as taking place in a public space.

Let's look at a ruling from the Seoul Southern District Court (2020GoJeong90) that clearly illustrates this. This case involved a BJ who was punished for sending abusive messages in a one-on-one chat to another person while broadcasting.

The defendant, identified as Mr. A, who was running a solo broadcast on an internet site, got into an emotional dispute with the victim, Mr. C, whom he met during an item trade. Unable to contain his anger, the defendant turned on his broadcast from his home and, while viewers watched in real-time, streamed the game chat window and KakaoTalk conversation window with the victim directly onto the broadcast screen.

Subsequently, the defendant sent a total of six extremely harsh insults through the game chat window, including "Did your parents die?" and "You f***ing unfilial son." When the victim did not answer his calls, he even resorted to threats, saying, "Answer before I expose your wife and kids and leak your phone number," and "I'm coming with a knife, so you better arm yourself."

In response, the court did not consider the defendant's act of sending messages through a one-on-one chat window as a mere private conversation. The court clearly ruled that the defendant's act of broadcasting the chat window to expose its content to viewers constituted "publicly insulting the victim by sending abusive messages in a state where an unspecified number of people could see it."

Ultimately, the court recognised both insult and threat charges in the defendant's actions and imposed a fine of 2 million won.

The precedent we just examined involved a BJ who insulted someone by displaying a one-on-one chat on their broadcast. What if, conversely, a general user sends abusive whispers to a BJ who is broadcasting? This also falls under the same legal principles, as the key element for establishing a crime, 'publicity,' can be recognised.

The crucial key to injecting publicity into a one-on-one chat is 'potential for dissemination' and 'intent.' If the offender was watching the other person's broadcast, or if they sent the abusive whisper with full awareness that it was a live broadcast, the court's judgment becomes significantly stricter. This is because the offender is seen not merely as attempting a private one-on-one conversation, but as having a clear intention to use the BJ's broadcast screen as a 'megaphone' to spread their insults to numerous viewers.

This is perfectly in line with the Southern District Court's ruling, which recognised publicity by deeming one-on-one chats exposed on a broadcast screen as being in a 'state where an unspecified number of people could see it.' Even if it appears to be a one-on-one whisper, if the person knew it could be disseminated to an unspecified number of people through the broadcast (intent) and proceeded to do so, they will ultimately find it difficult to escape the severe penalties of insult or defamation charges.

In conclusion, the thought that 'it's always safe because I used the whisper function' is a gravely dangerous misconception.

In today's era where internet broadcasting is commonplace, a single one-on-one message, sent carelessly, can be live-streamed to tens of thousands of monitors simultaneously, ensnaring you in the 'publicity' trap without you even realising it. This is because courts do not merely look at the superficial 'whisper system' being used. They delve into whether the chat had the potential to be exposed to an unspecified number of people through the actual broadcast screen, and whether the offender intended this.

This means that a stone thrown under the assumption of being in a private room could, in reality, be interpreted as being fired into the middle of a town square, aimed at an unspecified crowd. Harsh words spoken from behind the flimsy shields of anonymity and one-on-one chat can ultimately lead to severe consequences such as criminal punishment and a criminal record. Before hitting the Enter key in a fit of rage during a game, you should remember that countless viewers' eyes might be watching from beyond your monitor.