허위조작정보(소위 ‘가짜뉴스’) 규제에 대한 헌법적 문제점에 관한 연구

‘Freedom of Speech,’ constitutionally is a notion including ‘Freedom of Press and Publication’ and ‘Freedom of Assembly and Association’ of Article 21 of the Constitution and it is a fundamental element of the liberal democracy. Freedom of speech, like any other fundamental rights, is not unlimited. Ensuring the freedom of speech should not destroy the basic existence of the community or the humanity and personality of the member of the community. The question is what the constitutional limitation of expression that are not protected is. Even though the expression is protected by the Constitution, it is still a problem that when and where the government intervention for the public interest is allowed. Currently, legislations have elaborate and detailed rules of punishment when fake news defames personal reputation and violates personal legal interests. There are no legal sanctions when social and national legal interests are violated, however. Future problems with fake news should therefore be concentrated on the necessity of new regulation when social and national legal interests are violated. In a future information communication society, personal media, along with original media would significantly affect the political decision-making process. There is a high risk of fake news distorting the political decision-making process, which is the fundamental element of the liberal society. It is not fair to punish an individual’s lie or fake news. The government also should not edit any expression, existence and nonexistence of the value of information or harmful nature. The banishment of the fake news (although it might not be fast) should be left to the self-rectifying function of the civil society and the competitive mechanism of the thoughts and opinions with a firm trust of the collective intelligence; however, fake news of the multimedia product that is portrayed as ‘press reports’ should not be regarded as an individual’s freedom of speech or be left in the blind spot of the regulation. There is a need for proper discussion whether the ‘individuals that serve a similar function as the press’ would be constitutionally dealt with as a freedom of speech or be restricted like the other press. Unlike some of the providers for the information and communication that simply serves to convey information, some use algorithms and artificial intelligence (AI), serving a similar function to the press. Those should be considered as press and should be actively demanded to serve the obligation of the press. The ‘influence’ of the media should be the rationale of the enforcement of the public obligation to the digital news environment. The scarcity or radio waves was the reason for the current press’s public obligations but it is not in use any more in digital news system. Legislation measures should therefore be considered to reveal the influential platform’s algorithms and to clarify the procedures that distinguish fake news. In the future, there is a need to review and revise the overall freedom of speech and press as the era of multimedia and the individual media arrives.