'Fake News From A Legal Perspective: The United States And South Korea Compared' by Ahran Park and Kyu Ho Youm in (2019)
Southwestern Journal of International Law comments
"Fake news" has emerged as a pressing concern since the 2016 U.S. presidential election. As media columnist Jim Rutenberg of The New York Times noted in November of 2016, "[t]he internet-borne forces that are eating away at print advertising are enabling a host of faux-journalistic players to pollute the democracy with dangerously fake news items."' Similarly, The Washington Post media columnist Margaret Sullivan, a former New York Times public editor, wrote one month later that "the era of fake news causing real trouble" has arrived in the United States.
Publishing fake news has been around as a legal issue for many years.' As early as the late 18th century, fake news was already addressed by the United States Congress. When Congress passed the Alien and Sedition Act in 1798, one of its objectives was to punish "malicious" falsehoods about the government as a crime.
Fake news and its counterpart - "real news" - is not limited to the United States. The impact of fake news is global. Freedom House reports that fake news was spread in 30 of the 65 countries examined between June 2016 and May 2017. South Korea is no exception in confronting fake news as a sociopolitical and legal issue. Koreans dealt with fake news during a presidential impeachment in early 20176 and a snap presidential election in May 2017. Fake news has been often abused to calumniate political opponents in Korea.
In the United States, where freedom of speech and the press is the rule, not the exception, however, "[t]he real question is not whether fake news is protected, but under what circumstances would fake news not be protected." But in other countries, which are less speech-friendly, disseminating fake news is rarely not discussed as a part of free speech. In Ireland, for example, a new law proposed would criminalize spreading fake news on social media. In Germany, a social media law came into force in October of 2017 that requires social media sites to remove fake news promptly.'" The German law gives social media networks twenty-four hours to take actions on fake news after they have been alerted. "
From a comparative perspective, South Korea and the United States deserve careful attention, given that American law has exerted a considerable impact on Korea's democratic process as a rule-of-law-nation over the years. Fake news and freedom of expression is a timely topic for comparatists, since it illustrates how society approaches evolving free speech issues like fake news. This Article first examines the definitional framework of fake news in the United States and Korea. Second, it analyzes where fake news is placed as a legal issue in the United States and Korea. And finally, the contrast of the United States with Korea is analyzed by looking at how fake news is framed as a new or not so new issue in free speech jurisprudence.
