Rating System of Video Materials

[19-2 KCCR 362, 2004 Hun-Ba 36, Oct. 4, 2007]

In this case, the Constitutional Court decided that a part of Article 18 Section 5 of the Disk, Video and Game Materials Act, which provided a video material should go through the rating test by the Korea Media Rating Board before its distribution and the distribution without rating was prohibited, was not against the Constitution.

Background of the Case

The complainant was indicted and convicted in the first and second instance by violating the Disk, Video and Game Materials Act on the ground that he had imported DVDs of foreign movies from early December 1999 to November 22, 2000 without getting the import recommendation by the Korea Media Rating Board and circulated these through internet without having rating test. The complainant appealed to the Supreme Court and, during the pending suit, filed a motion to request constitutional Review on Article 18 Section 5 of Disk, Video and Game Materials Act prohibiting the circulation of video materials with no rating test. When the Supreme Court denied the motion, the petitioner filed this constitutional complaint against the provision based on Article 68 Section 2 of the Constitutional Court Act.

Summary of the Opinion

The Constitutional Court declared unanimously that prior restraint of the circulation of video materials with no rating test neither comes under the censorship nor violated the principle of the prohibition of excessive restriction. The reasons are as follows.

1.The censorship prohibited by Article 21 Section 2 of the Constitution is an administrative authority's act of deliberating on the contents of an idea or opinion and suppressing it from being published on the basis of its contents - in other words, a ban on publication of the unlicensed material. The censorship is impossible even by law and prohibited under any circumstances.

By the way, rating system in this case is not the procedure where Korea Media Rating Board decides in advance on whether to allow the opening and circulation of a expressive material to the public or not. However, it is just a procedure to prevent the violation of law by the opening and circulation of a expressive material and to rate the ages enjoying the material before the opening and circulation so that it may intercept the bad influence to the minors due to the circulation of the video materials. If the video materials in this case are given the rating which the minors cannot use, the access is denied to the minors at the time of rating by the restrictions of access age. However, when the minors get older and become the age to enjoy the video materials, they can freely access and use the materials because the opening and circulation itself is not prohibited. For this reason, the rating system is different from the censorship which prohibits the opening and circulation of an expressive material in advance and makes impossible for the people to access and use the material after time passes.

Conclusively, as far as the rating system on video materials is put into effect on the premise of their opening and circulation, prohibiting the circulation of video materials with no rating test does not come under the censorship prohibited by the Constitution.

2.The rating system in this case is to strive for the sound growing of minors and, further, to contribute to the cultural and sentimental life of Korean people by prohibiting the circulation of video materials with no rating test and firmly establishing the rating system of video materials. Accordingly, the legitimacy of the end and the propriety of means are satisfied. In addition, the video materials cannot be effectively regulated by their attributes once spread, so they should be regulated in advance before circulated in order to intercept the bad influences of illegal video materials to minors. Then, the compulsory rating test before their circulation satisfies the Least Restrictive Means Rule in the Principle Against Excessive Restriction.

On the other hand, prior rating system on video materials has something to do with the restriction of basic rights in a certain part according to the result of the rating. However, comparing the bad influences that minors would get from the circulation of exceedingly inflammatory or violent video materials, the disadvantages of the

circulators of video materials which are incurred from the age restrictions according to what grating is given could not be an excessive restriction. Hence, the Balancing Competing Interests Rule would be satisfied. As mentioned above, the rating system of video materials in this case satisfies all the requirements of the Principle Against Excessive Restriction including the legitimacy of the end, the propriety of the means, necessary minimum restriction, and balance of interests.