Case on Internet Game Authentication

[27-1(A) KCCR 342, 2013Hun-Ma517, March 26, 2015]

In this case, the Constitutional Court held that Article 12-3 Section 1 Item 1 and 2 of the Game Industry Promotion Act and Article 8-3 Section 3 and 4 of the Enforcement Decree of the same Act, which mandate game product-related business operators to take measures for authentication when game users sign up as members as well as to obtain the consent of legal representatives when juvenile users sign up, are not in violation of the complainants’ general freedom of action and their right to informational self-determination.

Background of the Case

A. One of the complainants named ○○○, who was 17 years old when he brought this case to the Court, is a “juvenile” under Article 2 Item 10 of the Game Industry Promotion Act (hereinafter the “Game Industry Act”), and the other complainant ××× is an adult. Complainants ○○○ and ××× attempted to sign up for a website to play an internet game provided via an information and communications network but, pursuant to Article 12-3 Section 1 Item 1 and 2, were not able to sign up as members and use the game products. Complainant ○○○ failed to follow the procedure for authentication and secure the consent of a legal representative, while complainant ××× did not take the steps for authentication.

B.Accordingly, on July 24, 2013, the complainants filed a constitutionalcomplaint with this Court challenging the constitutionality of Article 12-3 Section 1 Item 1 and 2, which require game product-related business operators that supply public access to game products via information and communications networks to provide game users with a means for authentication when they sign up and to obtain the consent of

legal representatives when juveniles sign up, and Article 8-3, Section 3 and 4 of the Enforcement Decree of the same Act, which elaborate on the methods of authentication and the consent of legal representatives, alleging that these provisions violated their general freedom of action and right to informational self-determination.

Subject Matter of Review

The subject matter of review in this case is whether Article 12-3 Section 1 Item 1 and 2 of the Game Industry Act (amended by Act No. 10879, Jul. 21, 2011), Article 8-3 Section 3 and 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23523, Jan. 20, 2012) (Article 12-3 Section 1 Item 1 of the Game Industry Act and Article 8-3 Section 3 of the Enforcement Decree of the same Act that stipulate on authentication are hereinafter referred to as the “Authentication Clause”, and Article 12-3 Section 1 Item 2 of the Game Industry Act and Article 8-3 Section 4 of the Enforcement Decree of the same Act that provide for the requirement of prior consent by legal representatives are hereinafter referred to as the “Prior Consent Clause”), as provided below, infringe on the fundamental rights of the complainants.

Game Industry Promotion Act (amended by Act No. 10879, Jul. 21, 2011)

Article 12-3 (Preventative Measures on Excessive Immersion in and Addiction to Games, etc.)

(1) For the prevention of excessive immersion in or addiction to games by users of game products, game products-related business operators [limited to those who provide service so that the public may use game products through the information and communications network (hereinafter referred to as “information and communications network”) as defined in Article 2 (1) 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.:

hereinafter the same shall apply in this Article] shall take measures to prevent an excessive use of game products including the following (hereinafter referred to as “preventative measures”):

1. Confirmation of real name and age of users of game products when they join as members and authentication of themselves;

2. Securing the consent of legal representatives, such as persons with parental right when juveniles join as members;

Enforcement Decree of the Game Industry Promotion Act (amended by Presidential Decree No. 23523, Jan. 20, 2012)

Article 8-3 (Preventive Measures on Excessive Immersion in and Addiction to Games, etc.)

(3) Each game product-related business operator (limited to game products related business operators under Article 12-3 (1) of the Act; hereafter the same shall apply in this Article) shall devise means to confirm the identification of the user of a game product by requesting that an accredited certification authority referred to in subparagraph 10 of Article 2 of the Digital Signature Act or other third party or administrative agency providing services for confirmation of identification confirm his/her identification, or by face-to-face identification, when the user of the game product becomes a member as prescribed in Article 12-3 (1) 1 of the Act.

(4) Each game products related business operator shall obtain the consent of legal representatives by any of the following methods pursuant to Article 12-3 (1) 2 of the Act:

1. That the game products related business operator posts the details of the consent in the information and communications network defined in Article 12-3 (1) of the Act and requests the legal representatives to mark whether they consent to such details;

2. That the game products related business operator directly issues a document stating the details of the consent or delivers such document to the legal representatives by mail or fax, and requests

them to submit the document after affixing their seal or signature to the details of the consent;

3. That the game products related business operator sends an electronic mail message stating the details of the consent to the legal representatives and receives electronic mail messages stating the expression of consent from them;

4. That the game products related business operator informs the legal representatives of the details of the consent and obtains their consent over the phone, or informs the legal representatives of the method by which he/she may check the details of the consent, such as the Internet address, and obtains their consent over the phone again.

Summary of Decision

A. Review of Authentication Clause

The Authentication Clause aims to prevent excessive immersion in or addiction to internet games by effectively ensuring age-based regulatory measures and inducing internet game users to voluntarily restrict their game hours, which is considered a legitimate legislative purpose, and requiring the authentication of users is an appropriate means to serve such purpose.

Information and communications network service providers, such as game product-related business operators, are not authorized to collect and utilize the resident registration number of their service users and are thus practically unable to confirm just their real name or age accurately online without authentication procedures, and the method specified in Article 8-3 Section 3 of the Enforcement Decree of the Game Industry Act requires a credible third party to carry out authentication measures and minimize the scope of information collection, which appears to be the least restrictive means in gaining precise confirmation of the real

name and age of game users. Furthermore, additional consent of internet game users is required for game product-related business operators to collect information other than the results of authentication; there are sufficient ways available to minimize the restriction of fundamental rights resulting from information disclosure by strictly regulating the entire process throughout the collection, use, and storage of information collected with consent; and the requirement for one-time authentication at the time of sign-up does not necessarily present a major barrier or restriction so as to make users rethink their game use itself or intimidate the game market. For this reason, the Authentication Clause also meets the least restrictive means test.

In addition, no significant private interest is limited by the requirement for one-time authentication when signing up, while major public interest lies with the purpose of the Authentication Clause to prevent excessive immersion in and addiction to games, which means the Clause is not inconsistent with the doctrine of balance of interests.

Therefore, the Authentication Clause does not infringe on the complainants’ general freedom of action and their right to informational self-determination.

B. Review of Prior Consent Clause

The Prior Consent Clause aims to prevent juveniles from being excessively immersed in or addicted to internet games by allowing their legal representatives to intervene their decision on whether or not to use internet games. This legislative purpose is considered legitimate, and obligating juveniles to obtain the consent of their legal representatives when signing up is deemed an appropriate means to achieve that purpose.

The Prior Consent Clause offers the opportunity to determine the game use and game hours of juveniles at their homes through dialogue and thereby prioritizes the autonomous efforts of each household in resolving

the issues of overindulgence or addiction of juveniles. This measure does not amount to excessive restriction of the juveniles’ right to self-determination, and other legal, coercive means concerning the game use of juveniles cannot fully replace the autonomous efforts either. Additionally, a vast majority of juveniles under the age of 18 lack independent financial capabilities, which implies a high risk of them being involved in crimes related to purchasable game items, etc., so the age criterion of 18 years should by no means be considered excessive. And the measures to minimize the restriction of fundamental rights are well established, such as keeping to the minimum the scope of information collected in obtaining the consent of a legal representative and diversifying the methods for such consent, which means the Clause complies with the least restrictive means requirement.

At the same time, the private interest involved in the juveniles’ obligation to discuss and obtain the consent from legal representatives is relatively small compared to the great significance of public interests, such as the reduction in social costs by preventing juveniles from being excessively immersed in or addicted to internet games and the social benefits gained from the juveniles’ growth into sound beings. This considered, the Prior Consent Clause is not contrary to the doctrine of balance of interests.

For the reasons stated above, the Prior Consent Clause is not in violation of complainant ○○○’s general freedom of action and his right to informational self-determination.

Dissenting Opinion by Two Justices

A. Dissenting Opinion on Authentication Clause

Internet game use is a recreational activity whose essential element is freedom, so the intervention in or regulation of game use by the state should be done in a very discreet manner. Therefore, insofar as it is

uncertain as to what is the direct cause of the harm allegedly inflicted by overindulgence and addiction to internet games, the legislative purpose of preventing such excessive use through effective guarantee of age-based regulatory measures and precise notification of game hours, regardless of who is subject to this regulation, should not be perceived as a legitimate public interest that can be pursued by the state.

Even if the legislative purpose of the Authentication Clause is considered legitimate to an extent, such legislation is rarely found in other countries. It is hardly an effective means to accomplish the legislative purpose given the risk of children stealing their parents’ identities; the requirement for authentication in anonymity-based internet games enables monitoring and control and thus threatens the freedom of game users; the authentication method provided for in the Clause is not universally accessible to all, which may result in marginalizing some people due to economic, social reasons; there is likelihood that personal information collected by certification authorities or authentication agencies can be leaked; and the Clause may undermine the growth of the game industry contrary to the legislative purpose of the Game Industry Act. As such, the Authentication Clause is not an appropriate means and fails to meet the least restrictive means requirement.

In addition, the complainants’ freedom and right of access to internet games is significantly violated by the Authentication Clause, while it is not even clear whether it is legitimate for the state to intervene in order to pursue the public interest underlying the prevention of overindulgence and addiction to games. Thus, the Clause is also in violation of the doctrine of balance of interests.

Therefore, the Clause violates the rule against excessive restriction, infringing on the general freedom of action and the right to informational self-determination of the complainants.

B. Dissenting Opinion on Prior Consent Clause

In terms of the juveniles’ overindulgence and addiction to internet games, autonomous regulation and self-purification of each household should come before the state’s intervention. Therefore, to legally force juveniles to obtain the consent of their legal representatives when signing up for game websites has the risk of violating the parents’ right to educate their children and, insofar as no procedure is secured to verify the identification of the legal representative who expresses consent, cannot function as an effective means to enforce the guidance of legal representatives. Consequently, the Prior Consent Clause has no legitimate legislative purpose and does not provide an appropriate means to achieve that purpose.

Even if it is considered necessary to mandate the intervention of a legal representative in connection with the content and duration of internet game use, a number of systems are already in place under the Game Industry Act and the Juvenile Protection Act, such as the shutdown system and the time restriction on the entrance to internet game facilities aimed at preventing juveniles’ overindulgence and addiction to internet games. This considered, requiring all juveniles to obtain the consent of legal representatives in signing up is arguably a duplicate and excessive measure; legal representatives, even if they agree to the use of internet games itself, may hesitate consenting because of their concern over the collection of personal information; and even requiring all those aged between 16 and 18, who are fully capable of autonomously controlling game hours according to their will, to gain the consent of their legal representatives constitutes an excessive limitation on the juveniles’ right to informational self-determination, which fails the least restrictive means test. Furthermore, it is considered illegitimate to force legal representatives to intervene in preventing the juveniles’ overindulgence and addiction to games, while the juveniles’ right to general freedom of action including their right to self-determination may

be overly limited and the right to informational self-determination of legal representatives who intend to consent to the juveniles’ use of internet games may be infringed upon by the Prior Consent Clause. Given this, the Prior Consent Clause also fails to comply with the doctrine of balance of interests.

Accordingly, the Prior Consent Clause violates the rule against excessive restriction and infringes on the general freedom of action and the right to informational self-determination of complainant○○○.