생성형 AI가 야기하는 형사법적 문제와 대응방향 - 가짜뉴스와 딥페이크 음란물을 중심으로 -

Abstract

The emergence of generative AI, while beneficial, is also causing social unrest due to the spread of fake news and instilling a sense of anxiety that anyone could become a victim of deepfake sexual crimes. In response to the societal confusion and growing fear caused by the side effects of generative AI and other artificial intelligence technologies, many countries have already established legal frameworks governing the development and use of AI or introduced specific regulatory policies for illegal content generated by AI, such as deepfake videos. South Korea is also participating in these efforts. Legal and policy approaches to AI development and use differ between the U.S. and Europe. While South Korea is relatively proactive and aggressive in its criminal policies toward specific issues or content, it has yet to establish a concrete direction regarding the broader development and use of AI. There are voices advocating for a more assertive shift in criminal law, warning of the risks that generative AI might bring and calling for changes in the law’s role, but I believe it is still necessary to uphold the principles of liberalism and the rule of law in criminal justice. Generative AI is still just a 'useful tool' and a technical means, and it is difficult to assess it as an independent agent that could threaten humans. Therefore, it is preferable for criminal law to remain as inconspicuous as possible to allow technological progress. Nonetheless, to ensure the reliability of information usage and foster a positive information use culture in the era of generative AI, it seems necessary to introduce mandatory labeling of AI-generated content and establish regulatory norms. Additionally, given the current tendencies of criminal legislators, preemptive legal interventions against malicious users who infringe on others' rights or use generative AI with clearly malicious intent seem likely to be implemented. However, when it comes to fake news, normative regulations face fundamental limitations due to the principle of freedom of expression, despite the many arguments in favor of inevitable regulation. As for deepfake pornography, since the concept and regulatory framework already exist, it does not seem to be the right time to expand criminal punishment beyond what is already in place. Nevertheless, in the case of fake news, a collaborative technical and policy response between the public and private sectors appears necessary, and in the case of deepfake pornography, there is a need to strengthen legal measures for victim protection and active investigative efforts.