사이버 명예훼손행위에 대한 형법적 대책

Defamation in Cyberspace and Criminal Countermeasures

&nbsp;&nbsp;As IT technology develops fast and most people can own the personal computers, more and more defamations occur in a cyberspace worldwide. Regarding this tendency, some scholars argue that because people can instantly raise objections to such defamations in a cyberspace due to the bi-directional nature of the cyberspace, freedom of expression in a cyberspace shall be protected in the higher standard as compared to that in a real world. However, this author is of an opinion that defamations occurred in a cyberspace shall be legally regulated under the same legal standard as in a real world because freedom of expression is still subject&nbsp;&nbsp;to others’ characters and reputations in a cyberspace environment under Article 21 (4) of Korean Constitutional Law.<BR>&nbsp;&nbsp;Title 33 of Korean Criminal Act (crime of defamation) will apply not only to a defamation in a real world, but also to that in a cyberspace. On the other hand, it is disputed whether Article 309 is applicable to a defamation in a cyberspace. Because internet medium is not considered as “publications” such as newspapers, magazines, radio broadcasting, or other kinds of media under Article 309, a defamation in a cyberspace can only be considered as violation of Article 61 of Act on Promotion of Information and Communications Network Utilization and Information Protection (hereinafter “AICN”), rather than violation of both Article 61 of AICN and Article 309 of Criminal Act.<BR>&nbsp;&nbsp;In order to prevent crimes of defamation in a cyberspace, this author proposes as follows:<BR>&nbsp;&nbsp;⑴ criminal activities constituting of defamations in a cyberspace should be regulated as punishable under Article 309 (3) and (4) of Criminal Act, rather than regulated in AICN;<BR>&nbsp;&nbsp;⑵ the amount of fine stipulated in AICN as penalty for committing defamation be reduced to that of Article 309 (3) and (4) of Criminal Act;<BR>&nbsp;&nbsp;⑶ measures of criminal probations should be actively utilized in order to effectively guard against cyberspace defamation crimes;<BR>&nbsp;&nbsp;and ⑷ Internet real name system should be introduced.