사상의 자유시장 이론과 플랫폼 거버넌스

Abstract

The concept of ‘marketplace of ideas’ has been employed as a conventional argument to justify freedom of expression. The Constitutional Court of Korea has also been significantly influenced by this concept, presenting it as a rationale to protect freedom of expression and asserting that “the Internet is the medium most closely approximating the ‘marketplace of ideas’”. However, the proliferation of disinformation, hate speech, and the development of artificial intelligence have urged a re-evaluation of the validity of the ‘marketplace of ideas’, which posits that truth can prevail over falsehoods through unrestricted competition. ‘Marketplace of ideas’, which is advocated from a laissez-faire perspective, also encounters challenges related to market failure when examined from an economic perspective. This phenomenon occurs because market failure is not limited to the market for goods but extends to the market for ideas as well. In the context of freedom of expression, market failure can result in impediments to information distribution, insufficient dissemination of high-quality information, and democratic representation. To address market failure in the realm of free expression, it is imperative to focus on platform governance. In the United States, self-regulation by individual companies or industries, and in Europe, co-regulation by governments, have been proposed as potential solutions to market failure. The divergence between the US and European approaches to platform governance stems from the distinct constitutional traditions of freedom of expression. While platform governance mechanisms, such as self-regulation and co-regulation, offer advantages including flexibility, expedience, and professionalism, they may also generate tensions with the rule of law and potentially result in private censorship when limiting fundamental rights. To ensure the democratic legitimacy of self-regulation, limitations on freedom of expression must be implemented in a manner consistent with the rule of law. Furthermore, to prevent co-regulation from devolving into private censorship, considerable caution must be exercised to ensure that government intervention does not transform into censorship by administrative authority.