Restriction upon Broadcasting Business Operator's Announcement of Sponsors

(15-2(B) KCCR 502, 2002Hun-Ba49, December 18, 2003)

Held, the provision of the Broadcasting Act that delegates thescope of announcement of sponsors permitted for broadcasting businessoperators to the presidential decree is not unconstitutional.

A. Background of the Case

Announcement of sponsors is the act of broadcasting businessoperators by way of broadcasting the name or the trade name of thesponsors who, although not involved in the production of broadcastingmaterials, have provided costs, goods, services, human resources, or location directly or indirectly necessary forthe productionof broad-

casting programs. Pursuant to the Broadcasting Act, broadcasting business operators may make such announcement of sponsors within the scope set forth by presidential decree (hereinafter the "provision at issue in this case"), and are subject to a civil penalty of up to ￦20,000,000 for violation of the above provision. The Enforcement Decree of the Broadcasting Actprovides that announcement of spon-

sorship is disallowed for those sponsors who manufacture and sell products whose broadcasting advertisement is prohibited under perti-

nent law or the Rulesof the KoreanBroadcastingCommission. Ad-

vertisement concerning cigarettes and smoking is prohibited by the Rules of the Korean Broadcasting Commission.

The complainant, who is aprivate business operator, was sub-

jected to a civil penalty imposed by the Korean Broadcasting Com-

mission for violation of the provision at issue in this case, when itannounced sponsorship by the Korea Tobacco and Ginseng Corporation(KT&G), a manufacturerand seller of cigarette products,in its broad-

casting program. The complainant thereupon filed the constitutional complaint in this case.

B. Summary of the Decision

The Constitutional Court, by a majority of six out of nine Justices, held that the provision at issue in this case is not unconstitutional. The grounds therefor are stated in the following paragraphs.

(1) Summary of the Majority Opinion

(A)Whether the provision at issue in this case violates the principle

against blanket delegation

Article 75 of the Constitution provides that the "President mayissue presidential decrees concerning matters delegated to him or herby statutes with the scope specifically defined and also matter neces-

sary to enforce statutes," thereby establishing the basis for statutorydelegation and indicating the scope and the limit of statutory delegation.The meaning of the 'matters delegated to him or her by statutes withthe scope specifically defined' is that the statute must specifically and clearly indicate basic factors as to the content and the scope to be regulated by the presidential decree so that anyone may expect from the statute itself general content of what is to be regulated in the presidential decree.

The announcement of sponsors, as in this case, is in essence atype of commercial

advertisement, in that the sponsors provide financialresources for broadcasting programs in order to advertise the sponsors' name or trade name, image, or product, in the name of sponsorship. Therefore, such announcement of sponsors should be allowed within the scope permitted for broadcasting advertisement under the law. The legislative purpose of the provision at issue in this case is, on one hand, to guarantee the announcement of sponsors as a means to obtain financial resources indispensible for the operation of private broadcasting businesses. On the other hand, the legislative purpose of the provision at issue in this case is to promote the fairness andthe public nature of broadcasting through establishment of a whole-

some broadcasting culture and orders pertaining to advertisement and, further, to substantively guarantee the freedom of broadcasting, by forming a basis to regulate announcement of sponsors that falls outside the permissible scope, thereby preventing private interests ofthe sponsors from exacerbating the commercialization of the broad-

casting programs or harming the freedom and independence of editingthe broadcasting programs.

Therefore, in light of the essential nature and the legislative pur-

pose of the announcement of sponsors, the internal permissible scope ofthe announcement of sponsors to be regulated by the presidential decreepursuant to the delegation of the provision at issue in this case islimited to the scope that may promote the fairness and the public natureof broadcasting through establishment of a wholesome broadcasting culture and orders pertaining toadvertisement and may further con-

tribute to a substantive guarantee of the freedom of broadcasting, withinthe permissible scope for broadcasting advertisement under the law. Therefore, it is sufficiently expectable that a broadcastingbusiness operator, such as the complainant, may not receive sponsor-

ship, or announce such sponsorship, from someone who manufacturesand sells products or services whose broadcasting advertisement isprohibited, such as the former Korea Tobacco and Ginseng Corporation, who was the sponsor in this case.

Furthermore, the provision at issue in this case applies to broad-

casting business operators, who are in a position to sufficiently expectgenerally the permissible scope of announcement of sponsors by wayof full knowledge of the content of the relevant broadcasting laws forming and regulating the scope of the broadcasting business oper-

ations obtainable through the licensing or approval processes pertainingto their own broadcasting businesses under such broadcasting laws.

Whereas it is difficult to set forth in detail the permissible scopeof announcement of sponsors in the statute in light of the technicality,expertise, diversity, and transformability of broadcasting, it is reason-

able to delegate such matters to the administrative legislation for anactive and flexible reaction to the situations of the time. On the other hand, the provision at issue in this case permits the announcementof sponsors as part of the freedom to operate broadcasting businesses, yet, at the same time, has established its permissible scope. Thesubjective right of the broadcasting business operators is thus createdby the establishment of the provision at issue in this case. In caseof such formative and permissive provisions, the degree of requirementfor specificity and clarity is relaxed compared with the provisions tending to directly abridge or restrict the basic rights of citizens. Here, the scope of the announcement of sponsors to be regulated by the presidential decree pursuant to the delegation of the provision at issue in this case is limited as indicated above. In this regard, the requirement of specific and clear delegation is satisfied.

Then, the provision at issue in this case is not in violation ofthe prohibition against blanket delegation, as it allows an expectationof the general scope permissible for the

announcement of sponsors tobe regulated by the presidential decree by the legislators' delegation.

(B)Whether the provision at issue in this case violates the basicrights of the complainant

The freedom of broadcasting, as with the freedom of the printednews media, has the nature ofan institutional guarantee as an ob-

jective regulatory order that serves the function indispensible for un-

hindered formation of opinions or formation of public opinion, as wellas the nature as a subjective right. The legislators may substantivelyregulate the organizational and procedural matters concerning estab-

lishment and operation of the broadcasting including the choice of broadcasting system and the status of the broadcasting businessop-

erators, with vast legislative formative discretion. Therefore, whenthe legislators permit privately owned and operated broadcasting businesses through formation of broadcasting law and legal system,private broadcasting business operators are guaranteed of the functionof the broadcasting expected in such broadcasting law and legalsystem and are entitled to the private right and the constitutional protection within the scope given under the law thus formed.

The announcement of sponsors regulated by the provision at issuein this case is, by its nature, a type of broadcasting advertisement unique to the operation of the broadcasting business. As such, the regulation thereof is a matter that falls within the formation of the broadcasting business. That is, the provision at issue in this casedoes not concern restrictions upon the freedom of broadcasting; rather,it is a formative legislation that regulates the operation of the broad-

casting business. As such, the provision at issue in this case guar-

antees the announcement of sponsors as a means to obtain financialresources necessary for the operation of private broadcasting businesson one hand, and, on the other hand, sets forth a regulation necessaryto substantively guarantee the constitutional freedom of broadcasting by considering various interests of viewers and broadcasting serviceproviders as well as broadcasting business operators through restric-

tions on its permissible scope. The provision at issue in this casedoes not restrict business activities to the extent that it denies profitof private broadcasting business, nor does it deprive private broad-

casting business operators of decisions based on self-governance andautonomy. It, therefore, abides by constitutional principles. The provision at issue in this case further conforms to the Constitution as it has not deviated from the scope of legislative discretion.

Any of the subjective rights to operate broadcasting business, tobroadcast, to advertise, and to expression of the broadcasting businessoperators concerning the announcement of sponsors are establishedsolely by the formation by the provision at issue in this case and solelyby the standard set forth thereby, therefore there is no implication or connotation of restriction or abridgement of basic rights, which, in turn, requires no additional constitutional justification.

(2) Summary of the Dissenting Opinion

The legislative purpose of the provision at issue in this case does not indicate any otherperspectives that would allow an under-

standing of specific purpose or scope of the statutory delegation otherthan the one that 'intends to permit sponsorship necessary for theoperation of the broadcasting business and the resulting announcementof sponsors within the scope regulated by presidential decree.' There-

fore, from such legislative purpose, no guidance or standard to beobserved by the

executivebranchin exercising the legislative author-

ity as delegated may be derived. In addition, even if the announcementof sponsors is a type of commercial advertisement, announcement ofsponsors is fundamentally different from advertisement in nature; therefore the announcement of sponsors should be regulated in away different from the one applicable to broadcasting advertisement.

Furthermore, a civil penalty is imposed for the announcement ofsponsors in violation of the provision at issue in this case. The pro-

vision at issue in this case, although it is not a criminal provision, thus incurs the effect of greatly restricting the basic rights. There-

fore, a strict requirement for clarity of delegation next to the oneapplicable to criminal provisions should apply to the provision at issuein this case. In addition, the announcement of sponsors merely consistsof announcing the name or the trade name of the sponsors upon re-

ception of sponsorship and, likewise, does not often transform reflectingchanges in social phenomena or involve factual relationship in diverseforms. Therefore, there would be no great hardship in terms oflegislative technique in determining the general standard for permissionon the part of the legislators themselves.

Therefore, the provision at issue in this case is in violation ofthe principle of the prohibition against blanket delegation, and istherefore unconstitutional.