가짜뉴스에 대한 합헌적 규제를 위한 고찰

Abstract

In a technological society where macro technologies, generative artificial intelligence, and platforms have accelerated by leaps and bounds, the risks and concerns of so-called fake news are intensifying. The Internet is a forum for expression, “the most participatory medium of expression”, as Constitutional Court has affirmed. Fake news is intentionally manipulated false information that has the appearance of a journalistic article. The rapid spread of fake news through social networking services (SNS) and personal media can lead to societal and structural problems by adversely affecting the judgment of individuals, threatening the freedom of expression on the Internet, which is rooted in freedom of thought. For this reason, it is necessary to regulate the creation and dissemination of fake news on the Internet. However, regulation in response to fake news eventually leads to restrictions on freedom of expression. Against this backdrop, the constitutional issues surrounding fake news and the response to it today are clear. It is a question of balancing the public interest protected by regulating fake news against the freedom of expression restricted by doing so. Regardless of the amount of money involved, it is difficult to determine whether information is true or false, and even false information can fall under the protection of free speech and expression. For this reason, legal regulation of fake news needs to be limited to those that objectively threaten people's basic rights and the basic order of liberal democracy, and whose danger or harm is obvious and requires urgency. As the issue of the regulation of fake news has become a hot topic in Korean society, this paper reviews the existing debate from a constitutional perspective and critically examines the dangers of fake news and the need for a constitutional legislative response, especially in the current era of changing technologies and platforms. To this end, we examined the legislative bills introduced in the 20th and 21st National Assemblies from the perspectives of the constitutional principles of clarity, proportionality, and pre-censorship funding, and examined the possibilities of responding to fake news in the current legislation, suggesting social science tools and self-regulation as complements to legislative regulation.