사이버 공간상의 표현의 자유에 대한 국가규제의 한계

Abstract

Today, cyberspace generated by the development of internet has greatly expandd the freedom of expression which is a constitutional right by spreading remarkably the opportunity and the method to express individual intention due to its features such as interactivity, openness, time-spatial unrestriction. But, on the other hand, we come to see the fact that due to anonymity individual and social lawful benefits such as defamation, the infringement of copyright are increasingly infringed. Though there are many lawful problems being discussed such as defamations in cyberspace, this paper confines the criticization toward government and governmental policy and policy makers concerning, what is called, Minerva case, in cyberspace. The interactivity through internet includes decentralization in communication, both directions, the removal in barrier of time and space, escaping boundary in the formal and the informal, the blending of the formal and the informal, escaping speaking and writing, the blending of simultaneousness and non-simultaneousness, the scarcity of visual and audio and social clues. These characteristics of internet as media are not sufficient but we can foresee that cyberspace will play a positive part in development of democracy. Cyberspace is a open medium that gives us the freedom of individual expression and the viewpoints represented in syberspace can be more exchanged as various information and viewpoints than the viewpoints made in existing mass media. And cyberspace can be said to have the function of public sphere that Hamabus spoke of and inactivate the discussion atmosphere that is essential to the decision of democratic intentions and give the space as a new teledemocracy that is beyond the existing method. Though the freedom of expression in cyberspace can be said to be confined for others' lawful and social benefits, the over limits and controls government can block the constitutional value that human history has developed. So the established principles toward the limits and regulations in freedom of expression concerning the offline boundary should be observed as hard as cyberspace. Especially the regulations toward the criticization of governmental policy should be allowed in harder and limited conditions.