14.Prohibition of Adolescents’ Nighttime Access to Online Games Case

[26-1(B) KCCR 176, 2011Hun-Ma659·683(consolidated), April 24, 2014]

In this case, the Court decided that a provision of the Juvenile Protection Act banning access to Internet games by juveniles under the age of 16 from midnight to 6 a.m., known as the “shutdown system,” is constitutional, stating that it neither violates nullum crimen sine lege, or void for vagueness doctrine, nor infringes on the online game providers’ occupational freedom and the adolescents’ general freedom of action.

Background of the Case

The complainants of this case are children under the age of 16, parents of children under 16, and online game providers. They filed a constitutional complaint in this case, arguing that the provisions of the Juvenile Protection Act prohibiting access to online games by adolescents between midnight and 6 a.m. as well as imposing criminal punishment for violation thereof are an infringement of rights including the online game providers’ occupational freedom, the adolescents’ general freedom of action, and the parents’ right to education.

Subject Matter of Review

The subject matter of review in this case is whether Article 23-3 Section 1 and Article 51 Section 6-2 of the former Juvenile Protection Act (later amended by Act No. 10659, May 19, 2011 and wholly amended by Act No. 11048, Sept. 15, 2011) and Article 26 Section 1 and Article 59 paragraph 5 of the current Juvenile Protection Act (wholly amended by Act No. 11048, Sept. 15, 2011) (the aforementionedprovisions except for Penal Provisions are hereinafter referred to asthe “provisions at issue”) infringe on constitutional rights of the complainants and thereby violate the Constitution.

Former Juvenile Protection Act (later amended by Act No. 10659, May 19, 2011 and wholly amended by Act No. 11048, September 15, 2011)

Article 23-3 (Restriction on Hours Provided for Internet Games in Late Night Time, etc)

(1) No provider of an Internet game (referring to a person who has reported him/herself as a value-added telecommunications business operator, as defined in Article 22 of the Telecommunications Business Act, including where a person is deemed to have reported him/herself as a value-added telecommunications business operator under the latter part of paragraph (1) or paragraph (4) of the aforesaid Article; the same shall apply hereinafter) that is provided in real time via an 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., among game products defined in the Game Industry Promotion Act (hereinafter referred to as “Internet game”) shall provide the Internet game to juveniles under the age of 16 between midnight and 6 a.m.

Article 51 (Penal Provisions)

Any of the following persons shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding ten million won:

6-2. A person who provides an Internet game to juveniles under the age of 16 late at night, in violation of Article 23-3

Juvenile Protection Act (Wholly amended by Act No. 11048, Sept. 15, 2011)

Article 26 (Restriction on Hours Provided for Internet Games in Late Night Time)

(1) No provider of an Internet game shall provide the internet game to

juveniles under the age of 16 between midnight and 6 a.m.

Article 59 (Penal Provisions)

Any of the following persons shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding ten million won:

5. A person who provides an Internet game to juveniles under the age of 16 late at night, in violation of Article 26

Summary of Decision

1. Conformity with Void for Vagueness Doctrine

Under the Juvenile Protection Act, “Internet game” is defined as game products provided in real time via an information and communications network among those defined in the Game Industry Promotion Act (hereinafter the “Game Industry Act”). Therefore, anyone can easily comprehend that all game products, requiring access to information and communications networks including the Internet to get themselves started or executed, are classified as Internet games regardless of the devices used or game types, and that those which are not defined as games under the Game Industry Act or which do not require access to information and communications networks are not Internet games. Thus, the meaning of “Internet game” in the provisions at issue is very clear. Meanwhile, the Addenda of the Juvenile Protection Act and Notification No. 2013-9 of the Ministry of Gender Equality and Family defer the application of the shutdown system to Internet games on smart phones and other mobile devices. In this case, reducing the applicable scope of the shutdown system is hardly a restriction on the complainants’ fundamental rights, and the stay of application for some Internet games does not necessarily imply that the meaning of “Internet game” as defined in this case is rendered ambiguous. For this reason, the provisions at issue are not void for vagueness.

2. Conformity with Rule against Excessive Restriction

The provisions at issue are designed to promote sound growth and development of adolescents and prevent their addiction to Internet games. Internet game itself is a kind of entertainment or pastime and is not considered negative, and banning access to Internet games only from midnight to 6 a.m. limited to adolescents is hardly an excessive regulation given the high rate of Internet game access by adolescents, the negative impact of excessive indulgence or addiction to Internet games, the nature of Internet games not allowing easy, voluntary cessation, etc. There is also a mechanism to minimize the damage resulting from such restriction, such as authorizing the Minister of Gender Equality and Family to conduct biennial reviews to avoid other kinds of excessive regulations and excluding pilot or educational games from prohibition. The “optional shutdown system” under the Game Industry Act requiring voluntary request for shutdown from the juveniles themselves or their legal representatives is scarcely used in practice and is therefore not sufficient to serve as an alternative means. For the said reasons, the provisions at issue satisfy the least restrictive means test. The balance of interests is also achieved, taking into account the importance of public interest served by protecting the health of juveniles and preventing their addiction to Internet games. Therefore, the provisions at issue do not infringe on the online game providers’ occupational freedom, the adolescents’ general freedom of action in terms of their pastime and entertainment activities, and the parents’ right to education.

3. Protection of Right to Equality

Internet game is highly addictive as it allows real-time interaction between users, and it is very likely to be accessed easily at anytime where information and communication networks are available and thus may result in long-hour gaming. Therefore, reasonable grounds exist for

applying the shutdown system only to Internet games. Additionally, Internet game products provided by those who have reported themselves as value-added telecommunications business operators defined by the Telecommunications Business Act through regular routes following the rating process under the Game Industry Act are subject to the shutdown regardless of whether the provider is domestic or foreign, and the fact alone that some game products illegally distributed through foreign servers are exempted from the shutdown does not necessarily mean that the domestic providers’ right to equality and non-discrimination has been violated.

Dissenting Opinion of 2 Justices

1. Concept of a Cultural State

The shutdown system, grounded on an outdated, nationalistic, and administratively expedient notion, represents an excessive intervention and interference by the state in violation of the respect for cultural autonomy and diversity, which ignores the concept of a cultural state.

2. Conformity with Void for Vagueness Doctrine

From the viewpoint of Internet game providers, the meaning and scope of “Internet game” is interpreted as the “elements of crime” set forth in penal provisions, but the standard for providing exception to Internet game products that are unlikely to cause serious addiction is not clearly laid out in the Addenda of the Juvenile Protection Act, which makes it difficult for ordinary people to properly identify the scope of applicable Internet games. Therefore, the provisions at issue are void for vagueness.

3. Conformity with Rule against Excessive Restriction

It is doubted whether the legislative purpose of the provisions at issue,

namely “securing sufficient sleeping hours for adolescents,” is a good reason to justify the restriction on fundamental rights, and it is difficult to decide that the provisions at issue serve as appropriate means because they are basically premised on the assumption that Internet games are harmful and valueless. Furthermore, the shutdown system is applied uniformly without exception while in fact only the games accessible by adolescents are supposed to be regulated by the provisions at issue, and the “optional shutdown” already exists under the Game Industry Act. Thus, the provisions at issue fail the least restrictive means test. The shutdown under the provisions at issue are not very effective since the rate of nighttime access to Internet games by adolescents has not been so high in the first place and it is impossible to control or prevent access using other people’s names. Meanwhile, the provisions at issue do not even achieve the balance of interests when considering the possibilities of excessive regulation infringing on fundamental rights and intimidating the online game market. Therefore, the provisions at issue violate the rule against excessive restriction.