Withholding of Video Product Classification Case

[20-2(A) KCCR 664, 2004Hun-Ka18, October 30, 2008]

In this case, the Constitutional Court decided that the provision of the former Sound Records, Video Products, and Game Software Act ("SRVPGA"), which stipulates a system where rating classification of video products can be withheld by the Korea Media Rating Board, contradicts the Constitution.

Background of the Case

The requesting petitioner applied for rating classification with the Korea Media Rating Board (hereinafter the "Board") in order to distribute the video produced and directed by him/herself (hereinafter, referred to as "the Video Product"), but the Board, pursuant to Article 20 Section 4 of the former SRVPGA, raised obscenity issues and decided to withhold a rating for 10 days. Also, grounded in the same rationale and provision, the Board again delayed a rating for three months as regards the second application for rating classification by the requesting petitioner (hereinafter "the Decision").

In response, the requesting petitioner filed a lawsuit seeking cancellation of the Decision against the Board to the Seoul Administrative Court, while also filing a motion to request for the constitutional review of statute, claiming that the part concerning the Video Product in Article 20 Section 4 of the former SRVPGSA (hereinafter "the Provision") that serves as premise of the pending trial, violates Article 21 of the Constitution that prohibits prior censorship. The Seoul Administrative Court granted the motion and requested for a constitutional review of this case.

Summary of Decision

The Constitutional Court, by a vote of 8 to 1, declared that the Provision violated the Constitution according to the following reasons:

1. Majority Opinion

In this case, the issue is whether the Provision, which provides for withholding of rating classification of video products by the Board, amounts to censorship.

Article 21 Section 1 of the Constitution provides for freedom of speech and the press, while Article 21 Section 2 of the Constitution prohibits licensing or censorship of speech and the press.

However, the medium of expression, in whatever form, is protected under the freedom of speech and the press guaranteed by Article 21 Section 1 of the Constitution. Therefore, it is evident that video products are also a medium of expression protected by the freedom of speech and the press. Additionally, the censorship mentioned in Article 21 Section 2 of the Constitution is a preventive measure restricting ideas or opinions from being published in advance through review and selection carried out by the administrative power, which implicates a prohibitive system against publication of non-authorized representations. Such prior censorship is also not authorized by law and absolutely prohibited.

Withholding of a rating by the Board is one of the rating classification of video products. The Board conducts review of submitted video products prior to distribution. Also, members of the Board are appointed by the President and operational expenses of the Board may be supported by State subvention. Business projects involving the State budget are prescribed to be consulted in advance with Minister of Culture and Tourism. Moreover, video products, of which ratings are withheld, are prevented from distribution and thus the Minister of Culture and Tourism and other competent authority may have the responsible public officials collect and scrap the unrated or rating-withheld video products. Penalties can be imposed to those who provided such products for distribution or viewing, and rating of video products can be withheld for an indefinite period of time as there is no limit on the frequency of withholding a rating.

Therefore, the Board corresponds to a censorship authority as ade factoadministrative body, and withholding of a rating of video products amounts to a system conducting review prior to distribution and prohibiting publication of unauthorized contents, namely censorship, which contradicts the Constitution.

2. Dissenting Opinion of One Justice (Limitedly Unconstitutional)

In case the contents of video products correspond to the press mentioned in Article 21 Section 2 of the Constitution, applying the Provision that aims for content review and rating classification of video products runs counter to Article 21 Section 2 of the Constitution.

Meanwhile, in cases where the contents of video products do not correspond to the press specified in Article 21 Section 2 of the Constitution, withholding a rating may be permitted provided that such restriction satisfies the conditions set forth in Article 37 Section 2 of the Constitution. However,de factobanning the distribution of video products by repeating the decision of deferring classification would be, in essence, violating the freedom relating to manufacture and distribution of video products.

For this reason, applying the Provision to video products that exhibit the attributes of the press defined in Article 21 Section 2 of the Constitution or applying the Provision in order to withhold rating classification exceeding three months violates the Constitution.

Significance of this Decision

The Constitutional Court, on August 30, 2001, had struck down Article 21 Section 4 of the Promotion of the Motion Pictures Industry Act, which stipulates withholding of film rating by the Board, on the ground that the said provision is tantamount to prior censorship by an administrative body (2000Hun-Ka9 case).

This decision, in the same context as the aforementioned case 2000Hun-Ka9 regarding the film rating, invalidated the classification withholding of video products, reiterating the Constitutional Court's strong commitment to fully guaranteeing the freedom of expression through strict prohibition of censorship.