[The Editors' Verdict] Regulation of Youth Harmful Game Advertisements in the Game Law Amendment Bill Is Unconstitutional

The game law amendment bill proposed in the National Assembly last December is a comprehensive revision that is essentially a government-initiated bill and contains many provisions. As a constitutional law scholar, I find several issues in various parts, but I must particularly point out that the regulation clause on game advertisements, which is justified by youth protection, contains fatal unconstitutional elements.

Article 67 of the game law amendment bill regulates certain methods and contents of game advertisements under the title of restriction on game advertising and promotion. Paragraph 1 of the same article prohibits certain methods or contents of game-related advertisements, among which Item 7 stipulates that "methods or contents of game-related advertisements corresponding to each item of Article 9, Paragraph 1 of the Youth Protection Act" are absolutely and entirely prohibited if they meet the standards of youth harmful media under the Youth Protection Act. Violations of this provision are subject to a fine of up to 10 million won (Article 92, Paragraph 1, Item 4 of the game law amendment bill). To begin with the conclusion, this provision is unconstitutional. The reasons are as follows.

This issue relates to the important constitutional principle that must be applied when regulating certain media or information for youth protection reasons, namely the distinction between illegal information and youth harmful information. Illegal information is illegal content whose distribution is prohibited not only to youth but also to adults. Consequently, access and use by adults are also not permitted for illegal information. Therefore, illegal information is the "object of prohibition." The most representative illegal information is obscene information or obscene materials. On the other hand, youth harmful information is content harmful to youth, and while its distribution to youth is prohibited, distribution to adults is allowed. As a result, access and use by youth are prohibited, but access and use by adults are permitted for youth harmful information. Therefore, youth harmful information is the "object of management." The most representative regulatory system for youth harmful information is the current "youth harmful media" system under the Youth Protection Act.

However, due to the difference between illegal information and youth harmful information as described above, regulation of illegal information and regulation of youth harmful information must be strictly separated. This is because if these two regulations are not separated and the boundary is unclear, it can lead to excessive restrictions on adults' right to know, thereby infringing on freedom of expression under the Constitution. In other words, even if there is a need to regulate information or expressions harmful to youth, the protection target must be limited to youth, and regulatory measures must be narrowly set to prohibit distribution to youth. Completely banning information or expressions harmful to youth but accessible to adults forces the state to lower adults' right to know to the level of youth, thereby infringing on adults' right to know derived from freedom of expression.

Article 67, Paragraph 1, Item 7 of the game law amendment bill stipulates that "methods or contents of game-related advertisements corresponding to each item of Article 9, Paragraph 1 of the Youth Protection Act" are prohibited, thereby setting game advertisements that meet the youth harmful media standards under the Youth Protection Act as prohibited for access and use by adults as well. Since youth harmful advertisements in game ads are harmful to youth, access and use by adults should be allowed. Otherwise, it infringes on adults' right to know protected by freedom of expression and is unconditionally unconstitutional. From this perspective, Article 67, Paragraph 1, Item 7 of the game law amendment bill is unconstitutional because it completely prohibits adults from accessing and using youth harmful advertisements in game ads.

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