전기통신기본법상의 허위사실유포죄에 관한 소고

Abstract

The Constitutional Court decided that Article 47.1 of Telecommunications Acts is a violation of the Constitution on December 28, 2010, which became a hot potato because of so called ‘Minerva’ incident. This article is to punish "those who make false communication using telecommunication facilities for the purpose of infringing public welfare". It is called the crime of false communication or crime of false information dissemination. The reason why The Constitutional Court decided that the article is a violation of the Constitution is "It does not satisfy the Principle of Clarity as the public welfare is obscure and it breaches the Principle of Surplus Prohibition." This article got extinct with the decision of The Constitutional Court. However, Ministry of Justice addressed that they would devise alternative legislation to punish those who try to disseminate false information on Internet. They asserted that it should not be accepted to disseminate false information when national security is in danger. On the other hand, those who believe in the principle that 'Obscure Punishment is Invalid' and assert that even false information falls under the freedom of expression are against the alternative legislation. In this situation, we tried to study how to prevent the dissemination of false information that may infringe national security and destroy social order, not limiting the freedom of expression too much. As a matter of fact, it is not easy to solve these two problems completely. If we emphasize the ‘interactivity’ of internet and the freedom of expression, we cannot help controlling rumors on the Net. In my personal opinion, if personal honor is defamed because of rumors on the Net, it can be punished by Criminal Law and Information Communication Law, and if the false rumor contains national and social danger to cause war or terror, it can be punished by National Security Law. Accordingly, to provide grounds to object against the alternative legislation for the Crime of Spreading False Information, we will review the History of Crime of Spreading False Information, concept of false information, telecommunication facilities, public goods and freedom of expression in details.