A woman in Hong Kong searches for books on a public library shelf on July 4, 2020. Following the implementation of the Hong Kong National Security Law, books by prominent pro-democracy figures, including Joshua Wong, have disappeared from public libraries and are no longer available for loan. [AFP=Yonhap News] 

A Society Where Past Judgments and Future Standards Are Unsafe

The U.S. Department of State has publicly expressed concern over South Korea's amendment to the Act on Promotion of Information and Communications Network Utilization and Information Protection, often referred to as the 'Fake News Eradication Act'.

While the controversy often narrows down to freedom of expression or censorship, the essence of the issue is not simple.

The core dispute is not about who determines falsehood, but rather for how long that determination remains valid. In other words, the 'temporal structure' of records and accountability is changing.

This amendment, in form, does not introduce prior censorship. There are no provisions for administrative agencies to directly order content removal.

Instead, it defines the concepts of false and manipulated information through legislation and imposes punitive damages for intentional dissemination.

On the surface, this appears to be an enhancement of ex post facto civil liability. However, in practice, the locus of judgment shifts away from the judiciary.

When punitive damages are combined with the abstract concept of falsehood, media outlets and platforms find it difficult to wait for court judgments.

Rather than risking litigation, preemptively blocking and deleting content becomes the most rational choice. In this process, the standard for determining falsehood shifts from judicial rulings to platform-specific regulations and risk management logic.

The state may not censor directly, but judgment is rendered outside of judicial proceedings.

A more serious problem is the continuity of responsibility.

This law is not structured to make a single judgment on a post and then conclude. As long as the information remains, it can be interpreted as being 'in circulation,' thus subject to current illegality. Even if a record was created in the past, responsibility can be raised again if someone claims damages today.

While not a retroactive application of criminal penalties, it opens up a structure where past records can be scrutinized based on present standards.

This shakes the temporality of the legal order.

It's not simply a matter of unpredictability in future judgments. The decisive point is that even records that have already received social and legal judgment and have been finalized can be resurrected by current claims of damage.

This is not a procedural trial like an appeal or retrial, but a method that nullifies the very finality of judgment. Records can no longer remain in the past; they are subject to accountability based on present standards at any time.

If this structure becomes entrenched, the nature of records fundamentally changes.

Records become not subjects of verification and rebuttal, but burdens that can transform into legal risks at any moment. Media outlets will organize their archives, platforms will move to a constant blocking system, and researchers and citizens will hesitate to cite past records. It becomes a society where deletion, rather than judgment, is the solution.

This is why concerns about a 'modern-day book burning' arise. Today's book burning does not involve burning books, but rather begins with a structure where retaining records becomes dangerous.

Let's return to the simplest yet most crucial question.

“Why not just avoid writing fake news?”

The answer is clear: “That is not the case.”

The problem with this law lies not in whether one writes fake news, but in the structure that renders records unsafe in both the past and the future.

Even records that were written in the past, accepted as fact, and have undergone social and legal judgment can become subjects of responsibility again due to claims of damage today.

Concurrently, even if there are no issues in the present, if there is a possibility that a record could become problematic due to future changes in standards, then the record is unsafe even at this very moment.

In a society where past judgments are never finalized and future judgments are unpredictable, the most rational choice becomes clear.

It becomes safest to avoid leaving any record at all, rather than writing accurately or recording faithfully.

This is why the regulation of fake news is not merely an issue of freedom of expression, but a problem that threatens the persistence of records and the temporality of the legal order of a democratic society.

There may be no censorship, but in a society where the past is never over and the future is uncertain, records disappear on their own.

This is the real danger we face today.