표현의 자유를 제한하는 광고 실증제도에 대한 비판적 검토

Abstract

Commercial advertising is within the realm of expressions protected by the freedom of expression. However, when assessing the constitutionality of laws restricting commercial expression, the level of scrutiny is less strict than the one applied to laws governing political expression. This disparity stems from the categorical approach employed in reviewing the constitutionality of laws restricting the freedom of expression, which applies different standards to different types of expression. While this categorical approach fosters predictability and consistency, it also heightens the risk of infringement of the rights associated with commercial expression. The requirements for advertising substantiation outlined in the Act on Fair Labeling and Advertising, which mandate businesses to substantiate factual claims in their advertisements, have the potential to infringe upon their freedom of expression. This is primarily due to the ambiguity of the requirements, the recurring burden of substantiation following the act of expression, and the authority of the Fair Trade Commission to suspend an advertisement before determining its illegality. Especially, the suspension of a particular advertisement pending the submission of substantiation data shares many traits with an unconstitutional prior restraint: the measure is imposed by an administrative agency; the Fair Trade Commission can suspend the advertisement even before its illegality is determined; and the advertiser is subject to fine if it fails to submit the substantiation data or if the advertisement eventually turns out to be a false or misleading one impacting customer decisions. While designed as a post hoc measure, this approach instills a more pronounced chilling effect than a fully post hoc regulatory framework where liability is established only after demonstrating the falsehood and illegality of the advertisement. Therefore, a compelling need exists for regulatory improvements, such as further specifying the meaning, scope, timing, and methods of required substantiation to ensure greater predictability and to mitigate the recurring burden of substantiation.