A Comparative Legal Study on Freedom of Expression and Regulation of Disinformation

Abstract

Freedom of expression, guaranteed in the First Amendment of the U.S. Constitution, is, in principle, a fundamental right that the state shall not interfere with. According to Mill’s theory of the “market of ideas,” from a utilitarian standpoint, it is assumed that when correct information and false or misleading information are in dispute, truth ultimately prevails. The only condition under which a state may restrict freedom of expression is only when it causes “clear substantial harm” to another person. Freedom of expression is also a “right that can be restricted” for the sake of public safety. When the emergence of modern deliberate deceptive acts, such as the “spread of false information” or “false or fake news,” threatens to paralyze the market for freedom of thought itself, it is necessary to consider what standards should be established from a constitutional perspective. In other words, beyond merely correcting false facts, this study adopted a comparative legal research methodology to conduct an in-depth analysis of how normatively we should respond to acts that intentionally disrupt the structure of democratic communication. Regulatory models for false expressions and disinformation show differing perspectives depending on each country’s constitutional traditions and media ecosystems. The United States focuses on “prioritized protection of freedom of expression and judicial remedies,” whereas the European Union (EU) emphasizes “platform stewardship and systemic risk mitigation,” and South Korea’s amended Information and Communications Network Act adopts an independent and forceful approach characterized by “state-led direct regulation and punitive damages.” From this perspective, this study examines theories on the absoluteness of freedom of expression and the case law of the U.S. Supreme Court, and further sheds light on the phase of regulating disinformation information adopted in EU legislation and at the Court of Human Rights in Europe, in order to draw necessary implications by comparing it with our own system.