게임광고 심의에 대한 헌법적 · 정책적 고찰 - 광고 사전심의제도 관련 헌법재판소 결정례들에 대한 분석을 중심으로 -

Abstract

Recently, obscene commercials of several games have attracted bitter criticism from consumer groups and public. Since a regulation controlling these advertisements does not exist, a bill was proposed that accord a pre-review power on game advertisements to an administrative agency(Game Rating and Administration Committee). However, the Constitutional Court of Korea recently held that commercial advertisement should be protected under the freedom of expression clause of the Constitution and that a principle of ban on prior restraint on any expression should be applied to commercial advertisement. The Court reasoned that although commercials are done to boost consumer spending and do not express political opinions, they should be considered as expressions protected by the Constitution because they play pivotal roles as ‘expressions’ by offering information and promoting new cultural trend. In so doing, the Court ruled that even if commercial advertisements stand a chance of infringing consumer rights, prior restraint on these advertisements by administrative agency is absolutely unconstitutional and only post-regulations should be permitted. The Court held that pre-review systems of medical advertisement and health functional food advertisement under Medical Act and Health Functional Food Act are pre-censorship on press and publication by government. In result, these constitutional rulings introduce a self regulation system to advertisement pre-review. Therefore, the bill granting government a power to pre-review on game commercials conflicts with new trend of advertisement regulations as well as the official interpretation of the Constitution. If people consider game commercials are harmful to minors and clamour for pre-review system on game commercials, the constitutional alternative is to construct a self regulation model which should be totally independent of (in)direct government control. The autonomous pre-review system operated by game industry might place game companies in charge of protecting minors and increase corporate social responsibilities.