허위조작정보 규제의 헌법적 한계 — 언론중재법 개정안(대안) 및 5･18민주화운동특별법을 중심으로 —

초록

Due to digital information technology, as all individuals become producers of information with their own media, the production and distribution of enormous information is exploding. Indeed, the freedom of speech and press is in full bloom. Anyone can easily and quickly convey their thoughts and opinions to the public in writing, graphics, photos, and videos with their own personal media. Among their information, there are true information, false information, valuable information, worthless or harmful information, and manipulated disinformation. Recent artificial intelligence technology makes it easy to create fake information that cannot distinguish whether it is real or fake. In this new information environment, is the constitutional freedom for individuals to produce and distribute false information or fabricated information guaranteed by the freedom of speech and press under Article 21 of the Korean Constitution? May the government have the authority to prohibit or curb the production and distribution of false or fabricated information only in the expectation that it will harm anyone or society, even if it is not illegal or does not infringe upon the legal interests or rights of other individuals protected by the Constitution or laws? The article starts with this problem awareness and aims to critically analyze Korea's recent legislative attempts to directly regulate so-called fake news or disinformation, especially the revised bill (alternative) of the Media Arbitration Act and the May 18 Democratic Movement Special Act. The recent Korea's legislative response gives the impression that it is too harsh and hasty without deeply considering the constitutional value of the freedom of report. Above all, the problem is that in judging the illegality of false or fabricated information, it simply defines such information as illegal without setting the infringement of specific legal interests or rights as a requirement. In particular, the bigger problem is that the revised bill (alternative) of the Media Arbitration Act directly targets the reports of news media under the name of ‘media reform’. In this paper, we first analyze what constitutional problems the punitive damages system for false or fabricated reports has. Subsequently, we examine the constitutional problems for the right to block general access to media articles. Finally, we analyze the unconstitutionality of the newly established “Crime of Spreading False Facts about the May 18 Democratic Movement” under the Special Act on the May 18 Democratic Movement.

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