정보기본권 신설 동향과 지향 - 새로운 미디어 환경을 헌법은 어떻게 수용하여야 하는가? -

Abstract

A debate on amending the constitution of the Republic of Korea (hereinafter referred to as “Constitution”) is in full swing. The current Constitution was revised without anticipating the intensification of the information society triggered by the changes in the media environment and the development of digital technology as follows: the descents of traditional media such as newspapers and magazines; changes in news consumption style centered on Internet portals; the rise of Internet media such as newspapers, personalized news using personal information, targeted advertisements, etc. For this reason, many scholars majored in constitutional law has argued that it should be reflected in the revision of the Constitution considering the changed information environment. Given the deepened information society, the necessity of revising these constitutions has been strengthened. As a result, various revisions including the revision of the Constitution proposed by President Moon Jae-in in 2018 are responding to such needs through the establishment of fundamental rights on information. In the meantime, various opinions have been suggested about how to add fundamental rights on information in revising the Constitution. It was difficult for the Korean society to find a good example because the information environment was ahead of any other society in the world. Therefore, the comparative legal methodology that the Korean Constitution mainly depends on was not useful in establishing fundamental rights on information. There is a need to establish a fundamental right to meet the new information environment and media environment. This article aims to suggest alternatives to establish a new fundamental right on information and how to express them if they are revised in Korea. To accomplish this purpose, this paper examined the concept of fundamental right on information as well as the concrete contents (type) of the fundamental right on information previously presented, and categorized them into four: personal information right, right to know, enjoyment of information culture and resolution of digital divide, and information security right (Ⅱ). In each case, a background of the adoption claim, a concept and contents, a realization structure, comparative legal considerations, such as the constitution of other countries, and revisions to the Constitution were examined (Ⅲ). Through these reviews, this paper suggests that the right of personal information, right to know (right to access information, and right to disclose information), and the right of information security should be established in the form of a fundamental rights clause. In addition, the contents of the enjoyment of information culture and the resolution of the digital divide are defined in the national target clause. However, because of the significant time that has passed, this paper suggests that the clause’s conversion into a fundamental right clause should be reviewed. In particular, this paper proposes to establish the right of personal information as follows: “Everyone has the right to self-information.” Secondly, the right to know is suggested to be established as follows: “Everyone has the right to access and obtain information that is generally accessible,” and “Everyone may claim to the public the disclosure of information that is generally accessible.” Third, the enjoyment of information culture and resolution of the digital divide are suggested to be established as follows: “The State shall endeavor to ensure that all citizens enjoy the information culture,” and “The State shall endeavor to ensure to solve the digital divide.” Finally, the right of information security is proposed to be established as follows: “Everyone has the right to a confidential, flawless, and reliable information system, sas well as an information and communications network.” If the question of the appropriateness of the so-called 1987 system is solved by amending the Constitution, it is essential that not only the constitution and the operation of the national institution but also the maintenance of fundamental rights in line with social change are necessary. Moreover, the establishment of information fundamental rights already mentioned is one of the core contents. Those who directly participate in the revision of the Constitution should bear this point in mind.