허위사실의 표현에 대한 법적인 분석 — 가짜뉴스에 대한 규제의 조건 —

Some false statement of fact is evaluated as not worthy of protection by freedom of expression. Other false statement of fact is protected by freedom of expression. Now that the voices of regulation against fake news are increasing, it is necessary to analyze in depth what elements of the false statement of fact lead to such different legal evaluations. With the background of the ‘Minerva case’ in the Korean Constitutional Court regarding the false statement of fact and the Alvarez case in the US Supreme Court, we will distinguish between the false statement of fact, lying, and fraud. When the various false statement of fact is evaluated rhetorically, three criteria emerge: false facts in terms of content; the reproachability of the perception of falsehood and the act of lying from the speaker's point of view; and the consequences of harm from the audience's point of view. Between false statement of fact having all three of these and that lacks one is bound to have a different legal evaluation. In light of this analysis, it is perhaps natural that the defamation of a false statement and the false communication in the Minerva case or the lie of receiving a medal in the Alvarez case are evaluated differently. And in light of this, in order for the regulation of fake news to harmonize with freedom of expression, ultimately, it is necessary to clarify the harm of expression to be governed through regulation and the public interest to protect.