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[Reporting File] Will the Fatherland Punish 'Fake News'?


"Truth and falsity are not clearly divided into two-way singles. Truth and falsity are often mixed in the expression of everyday citizens, and authoritative scholarship and ideology do not monopolize the full truth. If the person claiming to be disseminated is a public person, exercise strict sanctions with extreme caution.

"Truth and falsity are not clearly divided into single and double fasting. Truth and falsity are often mixed in the expression of everyday citizens, and authoritative scholarship and ideology do not monopolize the full truth. In the case of a public person who claims to have been proclaimed and disseminated, the exercise of legal sanctions must be extremely careful.In a democratic society, a public person is subject to constant criticism and verification. It is impossible to have complete information about the public, so it is clear that if legal sanctions are imposed on the citizens, in part because of their false accusations in the course of their criticism of public figures, the freedom of expression would be severely diminished. ”

Who is this sentence that seems to have expressed its opposition to the Moon Jae-in government's "fake news" punishment policy? This is the text of Professor Moon Jae-in, a former president of the Blue House of the Government, and a professor of law at Seoul National University, who was nominated for the Minister of Justice. This article was published in the September 2012 issue of Seoul National University Law, Vol. 53, No. 3, Legal Responsibility of Criticism of Some Public Figures. .
● Motherland Emphasizing 'Freedom of Expression'… Contradiction with 'fake news punishment'?

Is there a contradiction between the philosophy of the country's candidate, known as a progressive jurist who emphasizes freedom of expression, and the so-called 'fake news punishment policy' announced by the Ministry of Justice when Mr. Cho is a senior president of the Blue House? If so, can a country's candidate faithfully enforce the fake news punishment policy after becoming the Attorney General?

In this article, I would like to discuss whether Cho's philosophy of freedom of expression can coexist with the current government's policy of punishment of fake news. In particular, it examines the voices of concerns raised in relation to the fake news punishment policy and how it relates to the content of the candidate's argument in the previous paper. Let's analyze

The country's usual philosophy of freedom of expression seems obvious. A candidate for his homeland, who majored in criminal law, said in his 2014 book, Criminal Law of Temperance, "I am opposed to imposing certain morals or ideas through criminal law or restricting and suppressing constitutional fundamental rights, including freedom of expression." In his second edition in 2015, he added, "I hope that this book will no longer work because the phenomenon of excessive ethics of criminal law and the suppression of freedom of expression using criminal law disappear through the opening and closing of the law." Revealed clearly.

Indeed, many candidates have criticized the real issues in which the country uses criminal punishment to repress citizens' freedom of expression. In the aforementioned paper titled Legal Responsibility of Criticism of Some Public Figures, critically reviewing the conviction of former lawmaker Chung Bong-ju, “In the election process,“ the restriction of free expression of expression to criminal punishment must be unconditionally guarded. " Furthermore, candidate Cho argues, "Even if there are partial errors, exaggerations, and falsehoods, it is against democratic principles to suppress the verification of candidates for public office." It is also wrong to punish criminals for disseminating some false information. Claimed. Even "exaggeration or apparent falsification can contribute to useful social goals linked to values ​​underlying the freedom of expression," citing the Canadian Supreme Court's ruling on the provision of criminal penalties for dissemination of false facts.

● Motherland "Only non-criminal solutions to certified defamation"

In a paper published in 2013, "Reconstruction of defamation and insults in fact", "The case where the media that are" social strong "defames the public reputation of another" social strong "and the sign that" social weak "is" social strong " If the official 'injured' is defamed, only the non-critical solution should be maintained. If the 'socially strong' is allowed to mobilize the right of punishment because it has been infringed by honorary feelings, freedom of expression must be severely restricted. No. "

In a paper published in 2015, Criticism on the Overcriminization of Caricatures and Tears of Political Power, Cho said, "Freedom of expression is an air-like principle necessary for democracy to live. A poignant and poignant satire of political power. And mockery are the rights of the sovereign people, and the authorities have a duty to bear them. ” Especially in this paper, candidate Cho focuses on the case of applying other crimes such as invalidity of public documents or invasion of housing if the state cannot apply insults to 'G20 Promotional Rat Graffiti Case' or 'Planetary Park Geun-hye Poster Case'. I did. Summarizing the contents of the papers, past candidates of the country were shown to strongly oppose the state's punishment of media reports or civil expressions using penal code provisions such as defamation or insults.

In this regard, the government's policy, which is contained in the press release titled 'Right Countermeasures Against False Rights', released by the Justice Department on October 16, 2018, appears to be contrary to Cho's philosophy. The Ministry of Justice said, "The production and dissemination of false manipulation information that covers the truth would rather disturb the public's right to know and freedom of expression and threaten the field of public democracy." ① Defamation of another person's honor, defamation under the criminal law or defamation under the Information and Communications Network Act; ② Disruption of business or damage of credit through the dissemination of false facts; damage to business, damage to credit, ③ profit or loss of self or others In case of false communication, it is an obvious crime to be punished for violation of basic telecommunication law. " Furthermore, the Ministry of Justice establishes a rapid and strict investigation system from the early stages of false operation information crimes, and traces the production and dissemination leaders hidden behind, as well as "proactively undertake investigation even before suing and accusation." Etc. "
● Ministry of Justice, "False of false operation information". Isn't it a violation of freedom of expression?

The Ministry of Justice, of course, argues that the "actually counteracting fraudulent information" policy is different from the past government's use of criminal punishment to suppress freedom of expression. "False operation information means false facts that manipulate objective 'fact relations' intentionally, and various 'opportunities' expressions on objective facts, 'misleading' by mistake, and 'substantiated' claims are It is outside the scope of freedom of expression, and the Justice Department argues that false manipulation information violates the right to know and freedom of expression. It means that the Ministry of Justice's strict countermeasures against falsification information do not apply to the "repression of freedom of expression using criminal law" criticized by the country's candidates.

For example, the PD Handbook broadcasted a program that contained some false information in the course of criticizing the government's policy on US beef imports. However, the false news, such as President Moon Jae-in's secret possession of huge gold bars, does not exist in the first place, and since it is only intended to persecute Moon, Is that logic. Han Sang-hyuk, a lawyer nominated for the Korea Communications Commission, said, "Fake news or fake operation information is outside of freedom of expression."

Indeed, the papers of the candidates in their homeland are not without any passage that could be interpreted as if they had made a reservation on criminal punishment for false manipulation information with malicious intentions and without truly credible evidence. In the aforementioned paper titled Legal Liability for Criticism of Some Public Figures, Cho said in a civil case of testimony and criticism of public office candidates, "It should not be easily restricted unless it is an attack that is malicious or has significantly lost its substantialness. "The trend of criminal case should be changed to the tendency of civil case". Conversely, "malicious or significantly less significant attacks" can be interpreted as logic that can be criminally limited.

At the same time, however, the candidate for the homeland is based on the "actual malice" theory of US precedents, which is based on the Korean court's civil case "an attack that is malicious or of considerable loss." He agrees with the argument that it is reasonable to see it as adapted to the constitution. However, candidate Cho said of the US Supreme Court case referring to "real malice" in the same paper, that "the plaintiff makes it hard enough to prove" real malignancy ", which is intended to strongly protect freedom of expression. Explain. To keep the story short, Mr. Cho did not write a paper on the right to punish criminals for "malicious or significantly less significant attacks," but rather set the criteria for demonstrating the malignancy of false information to an almost undeterminable level. It is said that it is desirable to make punishment difficult.

(※ It may be a coincidence, but the country's candidate is an appropriate case in this paper when Prime Minister Lee Nak-yeon received a claim for damages from defamation caused by the dissemination of false facts in 2002, when he was a Democratic spokesman. Mr. Lee has repeatedly emphasized criminal penalties for fraudulent manipulation information.)
● "criteria is subjective". Misuse of State Power

Lawyers who are concerned about the 'fake news countermeasure' of the Moon Jae-in government can't help but mislead the government because it is very subjective to mislead or misguided misinformation. Point out that this is the biggest problem. The government judges false information that is harmful to them as malicious operation information with malicious intent, and acts as a right to investigate or prosecute, and judges that it is a mistake that has a basis for believing that false information that is not against them is true. Is likely to move in a direction that is not prosecuted. Contrary to the Justice Department's proclamation and, as former candidates for homeland feared, criminal law can be abused in the direction of suppressing freedom of expression based on arbitrary standards of power.

Indeed, attorney Kim Jin-young, who defended the 'PD Handbook' case, which the President Lee Myung-bak administration has oppressed freedom of expression, said in an interview last October, "The government's policy on punishment of mishandling information is the degree to trust the goodwill of the government." Is it possible to make a clear distinction between mistake and intentional manipulation due to negligence? It can be a basis or a means of imposing sanctions or overregulation on unfavorable reports from the government or power. " Advance jurisprudence professor Sung-soo Hong, who focuses on research on freedom of expression, such as hate speech regulation, also wrote on Facebook shortly after the government's policy was announced, "What's different from Lee Myung-bak's lawsuit?" And the Democrats oppose it together. I don't know how this can be done. "
● The ruling party accused of 'president's composite photos' What did my country criticize?

In addition, the way in which the current government or the ruling party uses criminal means for 'fake news' or 'disclosure' that criticizes the government can only be seen as a concern that the strict countermeasures against false information can suppress freedom of expression. I wonder if there is. For example, in January last year, together with the ruling party, the Democratic Fake News Legal Group announced that it had sued or accused 211 cases of "dissemination and defamation of fake news." Among them was the case of Kim Jin-kwon Chungnam Taean, a member of the Liberal Korean Party, distributing photos of Moon Jae-in and a dog. The ruling party's actions are precisely the kind of behavior criticized and warned by the candidates in their paper, "Criticizes the excessive criminalization of satire and ridicule for political authorities." In this paper, Cho presented a case in which a mouse was depicted in a G20 promotion related to President Lee Myung-bak, depicted Park Geun-hye as Snow White, holding an apple with the face of former President Park Chung-hee, and a chicken on the sign of the birthplace of former President Park Geun-hye. "Criticizing the criminal policy of criminalizing," such as the case of the face of former President Park Chung Hee wearing a beak. The ruling party cried out for fake news strict responses in 2015.

The incident in which the government criminally accused Shin Jae-min, who was a secretary of the Ministry of Strategy and Finance, also raised questions about the suppression of freedom of expression. Attorney Kim Han-kyu, who served as chairman of the Seoul Bar Association, served as Shin Jae-min who exposed to the media regarding the intervention of KT & G president selection process or issuance of deficit treasury bonds in the column [Lessons of Revelation of Shin Jae-min and Minerva Incident] (Biz Korea, January 7, 2019) He accused the government of accused of secrecy that it was not legally based. While the government claims that Mr. Shin's claim is not true, it is true that it is true that it is true that it has been accused of applying an official secret disclosure charge that can only be applied when it leaks "things that can be deemed worth protecting as a secret." Is not. Participation Solidarity also criticized the government, saying that the accusations against Mr. Shin are excessive. "We must refrain from accusations, lawsuits, and personal attacks." The charges against Mr. Shin are also no different from the former government's criminal charges for silence. Nevertheless, the government wrapped up Mr. Moon in a New Year's press conference in January 2019 saying, "It's very good for a young public official to have a sense of his judgment." Don't do it. "It wasn't until three months later that the accusation was rejected, even after publicly asking Shin. At that time, news about Shin had virtually disappeared from the media. If the purpose of criminal prosecution was to stop Shin's further exposure and keep the media quiet, then the government did.

● Will the Secretary of State punish fake news?

So, the question to ask a candidate for homeland to be the Minister of Justice who will be responsible for the government's "actually counteracting fraudulent information" policy, particularly the criminal punishment policy, is: Does the country's candidate agree with the government's "fake news punishment" policy? If yes, why do you think this policy is different from the "suppression of freedom of expression using criminal law" criticized by several papers before candidates for office came to office? What do you think about the point of view that the criteria for judging false information are 'true to be true' and 'critical intention' are arbitrary and dangerous? If you disagree with government policy, will you withdraw the Justice fake news punishment policy? If so, did you have any involvement in the government-generated fake news punishment policy when you served as President of the Blue House? If your thoughts have changed since you were a scholar and when you served in public office, what is the justification for these changes?

Before writing this article, the Ministry of Justice prepared for a hearing, asking the country's candidate's current position on the fake news policy, but Cho said, "I have some basic ideas from my academic years, but I will have a chance to reveal them later." . It was the same keynote that he said, “I will answer at the hearing,” all the questions that come to the hearing preparation office. It's hardly convincing why you didn't tell the press about "basic ideas you had since you were a scholar," not even on the issue of personal morality, but even on the core themes of the country's candidates. I hope that as soon as possible before the opening of the Personnel Hearing, I will openly share my current view of becoming a Minister of Justice, including the "basic idea of ​​my scholarship" regarding the policy of punishing fake news.
● "Judges are in power." I don't think it's okay

Finally, I would like to conclude by citing a passage from a paper published by a candidate in the country.

"And if the legal interests infringed by false facts are abstracted, such as' false factual dissemination," the risk is even greater. When the final judgment on truth and fraud is made by law, the judges are in power over state power, especially at a given time. For it will be the dominant force. " (Law of Korea, Legal Responsibility of Criticism of Public Figures, Which Includes Some False ,, Seoul National University Law, Vol. 53, No. 3, 2012, p. 180)

In the same way, the judge who decides whether or not malicious information is a false manipulation information is also a "state power, especially a ruling power in a certain period of time." And a candidate for homeland is a person who wants to be a minister of justice who supports the rule of that ruling power through criminal law. As a result, the candidate is obliged to explain to the people the seemingly incongruous contradictions and gaps between his scholarly beliefs and the current government's policy of punishment of fake news. We look forward to answering the candidates in their country's question whether the country will punish fake news. And at least I hope that the candidate's answer to this problem is not 'no problem because the ruling power in power now is a good power'.

(Photo = Yonhap News)

Source: sbskr

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