언론 · 출판의 자유와 명예보호 사이의 한계 - 영연방국가와의 비교를 중심으로

• 영문명: The Interrelationship between Freedom of Speech and Protection of Reputation - The comparative study on Defamation and Freedom of Speech in Common law and those in Korea
• 발행기관: 한국재산법학회
• 저자명: 윤기택(Yun Gitaek)
• 간행물 정보: 『재산법연구』財産法硏究 第24卷 第2號, 265~294쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.10.30

영문 초록

  The first half of this Study has dealt with the relationship between the common law of Defamation and Freedom of Speech in English Commonwealth Countries. Over the last decade, the relationship between the common law of Defamation and freedom of speech has preoccupied common courts around world; recently House of Lords in Reynolds v. Times Newspapers Limited and others and the New Zealand Courts of Appeal in Lange v Atkinson. Perhaps the most important development in the law of defamation in the last few years has occurred in the expansion of the common law qualified privilege defence. The basis of the privilege is the common convenience and welfare of society.
  In the United State, the issue was dealt with long ago in the Supreme Court"s landmark decision in New York Times v Sullivan. In New York Times, the United States Supreme Court held that the first Amendment"s protection of freedom of speech required a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" or with reckless disregard of whether it was false or not. The New York Times rule has been the most reference point in the deliberation in other countries of the relationship between the common law of Defamation and freedom of speech. The New York Times rule then came before the House of Lords in 1998 in Reynolds, when a defamation action was brought by a former Irish Prime Minister against the Sunday Times newspaper. Despite the sensitivity to free speech concerns evident in cases such as Derbyshire, English courts previously had not adopted a public figure defence in the common law of libel. Although it was not argued that the House of Lords, should adopt a New York Times-like defence, it was put that the common law should recognise a new "qualified privilege" that would protect political discussion. Under the suggested new rule, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject-matter.
  On the other hand, the Australian High Court and the New Zealand Court of Appeal have extended common law qualified privilege to matters of political discussion. There the occasion is privileged in the Australian situation. provided that the conduct of the defendant was reasonable in making the publication, that is that the defendant had reasonable grounds for believing the imputation true, took proper steps to verify the accuracy of the information, and did not believe the imputation untrue. The New Zealand Court of Appeal rejected a reasonableness requirement of the Australian High Court; the defendant in matters of political discussion could rely on the defence, provided there was no ill will and it did not take improper advantage of the occasion.
  In the second half of this paper, the comparative study on Defamation and Freedom of Speech in Common law and those in Korea has been tried. Prior to the 2000s the Korean Supreme Court had put more weight on protection of reputation than on protection of freedom of speech. In the 2000s the Korean Supreme Court seems to change its attitude and prefer freedom of speech to defamation. In case of conflict between protection of freedom of speech and protection of reputation, the Korean Supreme Court has decided the extent of freedom of speech in consideration of all social circumstances. The defence only applies to the comments made on matters of public interest and to expression based on Truth. If a defendant can"t prove that the statement made is true, justification can be used as a defence if the defendant has an adequate reason that the publication made could be true and public interest. In consider

목차

Ⅰ. 머리말
Ⅱ. 영연방국가의 명예훼손에 관한 논의
Ⅲ. 우리나라의 명예훼손에 관한 논의
Ⅳ. 맺음말
참고문헌
〈Abstract〉

키워드

명예훼손 언론의 자유 보도특권 공인 현실적 악의 Defamation Freedom of Speech qualified privilege public official actual malice