헌법상 표현의 자유의 내용으로서의 허위사실 표현 개념에 대한 소고

This study aims to confirm the concept of false statement of fact as a content of constitutional freedom of expression. It pointed out that the concept of ‘false statement of fact’ is negatively framed because the existing discussion assumes that misrepresentation takes place in the form of media reports, and noted that ‘false statement of fact’ can have the same status as other expressions, both in terms of maintaining a constitutional democracy and reaching the truth, which are mentioned as functions of freedom of expression, and in terms of the free formation and development of an individual’s personality. It was pointed out that representations made through technological means, such as AI and deepfakes, should also be considered in the discussion of the concept of false expression. To identify the concept of ‘false statement of fact’, I reviewed theoretical discussions on the concepts of fake news and disinformation, relevant bills submitted to the 21st National Assembly, the difference between the concepts of ‘news’, ‘fact’, and ‘information’, the distinction between opinion and fact, and the concept of falsehood. As a result, I proposed ‘current or past facts’, ‘falsity’, and ‘verifiability’ as conceptual elements of false expression, and ‘awareness of falsity’, ‘intent to mislead’, ‘harmfulness’, and ‘identification of the subject of expression’ as non-conceptual elements of misrepresentation.