情報空間における国家の役割と憲法論の課題

Abstract

Traditional theories of freedom of expression at the constitutional level adhered to state non-intervention. While upholding the public's right to know, specific legal principles focused on minimizing public authority's restrictions on the freedom of expression. However, systems like the broadcasting system, established to realize the public's right to know, were not fully integrated under the principle of non-intervention. This was due to the lack of recognition or necessity for state involvement in the order of the information sphere during the prosperity of mass media. Recently, the need to consider the order of the information sphere has increased in the internet environment. The idea that the state should take interest in or responsibility for the order of the information sphere, due to its deep relation to democracy, suggests that the state's role is indispensable and a constitutional responsibility. The above points can be grounded in the right to know as an objective law principle guaranteed by Article 21 of the Japanese Constitution. Traditionally, the right to know has only served limited functions, such as justifying the freedom of the press, but it should be restructured as the basis for the state's active constitutional responsibilities.Thus, the principle of non-intervention is modified, necessitating appropriate intervention. There are various ways the state can intervene in the information sphere, allowmg for legislative and administrative discretion. However, regarding restrictions on expression, traditional legal principles continue to apply, and this paper supports an "environment" centered approach. Currently, state intervention in the information sphere focuses on the regulation of Digital Platform Services (DPF) and the resurgence of mass media. Moves to strengthen regulations against defamation and misinformation, and some intervention in the relationship between DPFs and source media in news distribution, are desirable and should continue. For the resurgence of mass media, while discussions have progressed on NHK's internet distribution services, more indepth consideration is needed, i ncluding them anagement issues of newspapers in crisis. Finally, an state organization to collect and analyze information on the current state of the information sphere and propose policies is essential.