이른바 ‘허위사실유포죄’는 없다 -전기통신기본법 제47조 제1항의 해석 및 위헌론-

A blogger called ‘Minerva’, well-known for the articles of his economic analysis and prediction of Korean economy, was arrested and charged for his alleged action to spread the false information by the telecommunication equipment last year. He was accused of posting an article, which asserted that the Finance Department ordered the 7 major corporations to stop buying U. S. dollars in order to support the Korean won. The Finance Department denied this and the prosecutors argued that his posting of the article contravened the article of ‘Crime of Spreading False Information by Telecommunication Equipment.’ There had been several cases involved with provision(Article 47 Section 1) of the Basic Act on Telecommunication. It provides that “Whoever makes false telecommunication publicly using telecommunication equipment with the intent to impair the public interest shall be punished by 5 or less years of imprisonment or 50 million or less won fine.” However, it doesn’t provide that “Whoever spreads the false information to the public using telecommunication services with the intent to impair the public interest shall be punished by 5 or less years of imprisonment or 50 million or less won fine.” Nevertheless, the prosecutors and judges usually interpret this article to charge those who post articles on the internet sites that spread false information to the public. But I think this interpretation is absolutely wrong for the following reasons: 1. Nobody shall be punished only for telling a lie or spreading false information, except when it is provided by specific clauses, such as fraud, perjury, etc. According to the interpretation of the courts, the act to spread false information to impair the public interest shall not be punished if it is spread by other means than telecommunication equipment. It makes no sense that only the act by telecommunication equipment is punished. 2. The act that shall be punished is the ‘false telecommunication’ which means the fabrication of the name of telecommunication who originates and terminates, not the spread of false information. 3. The ‘telecommunication equipment’ means equipment, other than the equipment on customer premises, such as the telephone, personal computer to originate, route or terminate telecommunications, which is used by a carrier to provide telecommunication services. To communicate with others by telephone or personal computer is just the use of telecommunication services, not the telecommunication by the ‘telecommunication equipment.’ Spreading false information through internet can’t be construed as the false telecommunication by ‘telecommunication equipment.’ 4. The meaning of ‘with the intent of impairing the public interest’ can’t be clearly understood because the phrase uses the words with vague meaning. It is unconstitutional if the article that makes certain action a crime includes in it the abstract words whose meaning can hardly be pinned down. It is null and void for its vagueness. As a matter of fact, the blogger “Minerva” was arrested illegally because he had no intention of impairing the public interest, and the facts he referred to were not false. His posting of the articles on the internet to criticize the government is not the false telecommunication. And it was done not by the ‘telecommunication equipment’ but just by the use of internet services. It is the case of persecution on the anti-government speech by intentional distort and mis-interpretation of the article.