SNS 공간에서의 군인의 표현의 자유와 그 규제에 대한 연구

Abstract

The spread of the internet around the world have led to a rise of government regulations. However, it would not be appropriate to dismiss government “regulations” as a product of unconditional,anachronistic political outcome for the following reason. It is inevitable for a sovereign state, with theconstitutional obligation to act in favor of the public interest―in accordance with the constitutionalrepublican principle―to fundamentally consider “national security”. After all, national security isa prerequisite for its people’s existence as well as the realization of their fundamental rights, sincethe concept of regulations is defined as “a public entity intervening the activities of a private entityto achieve the objectives for the public interest”. Hence, this is no longer an issue of whether thecyberspace should be a target of regulations; instead, one needs to ask what should be regulated andhow, as well as the question of who would regulate. With the emergence of various social media that utilize such cyberspace in the 21st century, SNShas enhanced the people’s living conditions as it has been expended across all areas of the societyincluding politics, economy and culture. However, it is not plausible to blindly emphasize its positiveaspects from the perspective of national security. In particular, with the military personnel consistingmainly of soldiers in their 20s, with most of them actively utilizing the SNS, the increasing use of theSNS has led to various unforeseen issues. In early 2012, Captain Lee, while serving his military duty, posted some abusive remarks againstthe President on SNS. In March 2012, he also posted an article on the SNS insulting the head of thearmy information school, who was his superior at the time. As a result, Captain Lee was charged ofcontempt of superiors by the military prosecutor; therefore, the debate on the scope and limitation offreedom of expression for soldiers became a social issue. In the end, the Ministry of National Defenselaid out the “SNS guideline” in 2012 to prevent cases violating the military security or impedingthe military discipline in the wake of the spread of smartphones in the military. However, a varietyof practices violating the military security, such as using Kakaotalk for transferring the informationrelating to the training venue, Jindo-dog training status, military maps, etc. commonplace in practice. However, there has been insufficient discussion regarding the extent of the freedom of expression thatcould be guaranteed for solders in light of the problems over the use of SNS. This paper aims to develop this discussion. In order to do so, it firsts examine the legal nature of theSNS space based on the concept of SNS. It then reviews whether SNS space would really be subjectto legal regulations. In particular, it aims to investigate the extent to which the freedom of expressionof soldiers on SNS space is recognized in the US, where the freedom of expression is regarded as the highest value from the comparative legal view. From this, the paper explores the implications forappropriate regulations by analyzing the current legal regulatory measures of South Korea based onthe aforementioned points.