[The Editors' Verdict] Criminal Punishment for Proxy Gaming and Freedom of Expression

Recently, ahead of the National Assembly general election, the past history of proxy gaming by the number one proportional representation candidate of a certain political party has become a controversy. This issue has even extended to debates about the qualifications of the candidate as the number one proportional representative of a minor party that has consistently pursued justice and fairness as its political ideology. In fact, proxy gaming can be morally criticized from the perspective of fairness. Especially when considering the high level of morality required of a member of the National Assembly, a history of proxy gaming could be problematic. However, proxy gaming is no longer merely a subject of political and moral criticism. Proxy gaming may also become a matter of criminal punishment.

Today, I do not intend to discuss the issue of proxy gaming from the perspective of fairness. Instead, I want to examine a problem that the general public may not have considered before, namely the legal regulation of criminal punishment for proxy gaming from the perspective of freedom of expression. Proxy gaming and its criminal punishment also raise issues related to freedom of expression in the following ways.

First, games are protected as a form of freedom of expression guaranteed by Article 21, Paragraph 1 of the Constitution. There are no restrictions on the medium of expression that is protected under freedom of expression, regardless of its form. Moreover, since games can also serve as a means of artistic expression, they are also protected under the freedom of art guaranteed by Article 22 of the Constitution.

Second, if games are protected under freedom of expression and the act of using games is a form of expression, then proxy gaming corresponds not only to the exercise of freedom of expression by the person requesting it but also to the exercise of anonymous freedom of expression by the person performing the proxy gaming. Here, anonymous freedom of expression means the freedom to express and disseminate one's thoughts or opinions anonymously or under a pseudonym without revealing one's identity to anyone. This anonymous freedom of expression is also included in the freedom of expression guaranteed by Article 21, Paragraph 1 of the Constitution.

So, what problems do proxy gaming and its criminal punishment pose from the perspective of freedom of expression?

First, it fundamentally denies the anonymous freedom of expression in game use, thereby infringing on freedom of expression. Nowadays, internet games involve interactions with other users, but forcing these interactions to be conducted only under real names or verified identities, or requiring that the user must perform the actions themselves, fundamentally denies anonymous freedom of expression. To put it somewhat extremely, it is akin to prohibiting and criminally punishing a famous person from hiring a professional writer to ghostwrite their memoirs.

Second, of course, anonymous freedom of expression can be restricted under our Constitution for reasons of national security, public order, or public welfare. However, due to the special nature of freedom of expression, which is afforded a higher level of protection than other fundamental rights, any restriction must recognize a so-called "clear and present danger." The specific social harm caused by proxy gaming is unclear. Although the proxy gaming punishment law sets the requirement of "acts that interfere with the normal operation of game content," the criteria for judging "acts that interfere with the normal operation of game content" are very abstract and vague, making it highly likely that proxy gaming, whose social harm is not clear, will be subject to criminal punishment.

In conclusion, proxy gaming should not be subject to criminal punishment but should be resolved through contractual terms between individual game operators and users, as well as through voluntary regulation at the level of individual game operators, leaving it within the realm of private autonomy. In other words, it is not a matter for the state to intervene with criminal sanctions. Therefore, it is appropriate to delete the proxy gaming punishment provisions in the current Game Act through future amendments to the Game Act.

Hwang Seong-gi, Professor, Hanyang University School of Law