허위정보에 대한 징벌적 손해배상제의 법적 쟁점

Since the term “fake news” gained popularity during the 2016 US presidential election, the term “disinformation” has become the predominant academic term. Terms like “fake news” and “disinformation” are used in diverse contexts, including political conflict, election processes, war, threats to public safety and order (e.g., COVID-19), platform regulation, and national security. The difficulty in addressing this issue stems from its multi-dimensional nature. Recently, the development of the internet and social media, coupled with issues like elections, war, and COVID-19, has led to active global discussions and legislation on regulating disinformation. However, these laws impose restrictions on the press, such as excessive monetary fine, imprisonment, content control, and administrative burden, which have had a long-term negative impact on freedom of the press. From a comparative legal perspective, the Anglo-American legal system primarily responded to defamation through criminal and civil lawsuits. However, the strict liability rule, developed in the UK, has been evolving in the US since 1964. In recent years, criminal punishment has been abolished or virtually eliminated due to reflective considerations. Therefore, in the Anglo-American legal system, civil tort damages and the accompanying punitive damages system are considered the only practical means of countering misinformation. Conversely, while defamation is criminally punished in European countries, punitive damages are not accepted. Recent legislative efforts to strengthen platform regulation, such as Germany's Network Enforcement Act, France's Act on Countering Information Manipulation, and the EU-wide Digital Service Act, are attracting attention. Punitive damages originated in the UK and are actively used in the United States. While punitive damages in the United States have been positively evaluated as a substitute for regulation, they have also faced persistent criticism regarding their potential negative consequences. Consequently, the Supreme Court has limited the recognition of excessive punitive damages by requiring consideration of whether the amount of punitive damages is reasonably proportional to the actual loss. The legal doctrine concerning punitive damages against the press underwent a landmark transformation towards guaranteeing the freedom of speech and press under the First Amendment, with the New York Times Co. v. Sullivan case in 1964. In this ruling, the U.S. Supreme Court ruled that if a public official is defamed by false statements related to their public conduct, actual malice must be proven in addition to the falsehood of the news article to be liable for damages, regardless of whether the defendant is a media organization or an individua. This legal principle has been expanded through a series of subsequent rulings. In South Korea, an amendment to ‘ACT ON PRESS ARBITRATION AND DAMAGE REMEDIES’ that sought to introduce a punitive damages system was abandoned in 2021 after intense controversy. While there were some positive views on the bill, a considerable number of scholars argued for careful review or raised constitutional challenges on the grounds of violating the principle of clarity and the principle of proportionality. Now, with the new government inaugurated in 2025, the ruling party is pushing a similar “Plan to Eradicate Disinformation”, raising concerns. This study examines the legal problems concerning the recently proposed punitive damages system for false information from a comparative law perspective and in terms of its compatibility with the existing legal system. Ultimately, even if countermeasures against false information are necessary, careful regulatory measures should be taken while considering various alternatives.