[Insight & Opinion] Misunderstandings About Voluntary Regulation of Probability-Based Game Items

Hwang Seong-gi, Professor at Hanyang University Law School.

The issue of legislating the disclosure of probability information for game chance-based items continues to be controversial. The core of the debate is whether it is appropriate to convert the current voluntary regulation into a legal regulation. Looking at this debate, it becomes clear that there are several serious misunderstandings about the current voluntary regulation.

First, there is the argument that since probability information for chance-based items is voluntarily disclosed through self-regulation, there is no reason to oppose converting it into a legal regulation with the same content. Voluntary regulation is based on autonomy and voluntariness, whereas legal regulation is based on heteronomy and compulsion.

The logic that converting the already applied voluntary regulation with the same content into a legal regulation poses no problem reveals a misunderstanding and ignorance of the essence of voluntary and legal regulations. The basic principle of the constitution is that the state cannot intervene in individual freedom and rights in principle, and can only intervene restrictively when necessary for certain public interests as an exception. Since legal regulation takes the form of state intervention in individual freedom and rights, the Constitutional Court can review whether basic rights are infringed through constitutional review or constitutional complaints, and if infringement is recognized, invalidate the law through a ruling of unconstitutionality. However, the Constitutional Court cannot intervene in voluntary regulation.

Second, there is the argument that because voluntary regulation is ineffective, it should be converted into legal regulation. The issue of the effectiveness of voluntary regulation has indeed been the most critical argument against it so far. However, it is necessary to consider that effectiveness does not necessarily increase with legal regulation, but rather enforceability determines effectiveness. For example, consider the Road Traffic Act. The Road Traffic Act, a typical legal regulation, protects citizens' lives and health by maintaining order in road traffic. However, in our daily experience of road traffic, we often see violations of prohibitions or regulations under the Road Traffic Act, such as running red lights. What is the compliance rate of the Road Traffic Act? There is no guarantee that converting to legal regulation will increase the compliance rate of overseas games, which has been pointed out in relation to the effectiveness of voluntary regulation. Legal regulation does not guarantee complete enforceability over overseas games.

Third, there is the claim that the current voluntary regulation is ineffective. However, in fact, the current voluntary regulation has a high compliance rate. For member companies of the Korea Game Industry Association, compliance was nearly 100% before the strengthened voluntary regulation code was applied in December last year, and even now it far exceeds 90%. However, for game products from game operators who are not members of the Korea Game Industry Association or overseas games, the compliance rate is about 60%, so the overall compliance rate is estimated to be around 80%. Therefore, if the scope is narrowed to Korea Game Industry Association member companies that are obligated to comply with the voluntary regulation code, the effectiveness of voluntary regulation is not lacking but rather very high.

From a macro and long-term perspective, voluntary regulation is closely related to the self-sustainability and competitiveness of the game industry. For example, imagine a youth aspiring to become a world-class scientist. Can this prospective scientist, who was trained by parents without any creativity to succeed in admission to a prestigious university, grow into a world-class scientist demonstrating high creativity through a series of research processes after entering the university? There is great concern that legislating the disclosure of probability information for game chance-based items may become another “Galapagos regulation” that undermines the self-sustainability and competitiveness of the game industry.

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