Motion Pictures RatingCase

(13-2 KCCR 134, 2000Hun-Ka9, August 30, 2001)

In this case, the Constitutional Court invalidated the provisionsof the Promotion of the Motion Pictures Industry Act allowing theKorea Media Rating Board (hereinafter called the "KMRB") to sub-stantially ban the screening of a particular film for an indefiniteperiod of time by withholding a rating, because such practice of the KMRB is tantamount to censorship.

A. Background of the Case

Articles of the Promotion of the Motion Pictures Industry Actrequire a rating of a film by the KMRB prior to its showing, prohi- bit showing of a film not rated by the KMRB, and allow the KMRBto withhold the rating for a period less than three months if the filmcontains scenes with excessive depiction of violence or obscenity, so as to harm the established social morals and customs, or pervert thesocial order. Provisions of the Act also allow the Minister of Cultureand Tourism to ban the showing of an unrated film, and allow pun-ishment of persons disobeying the disposition with imprisonment ora fine. Provisions of the Public Performance Act require organizationof the KMRB to maintain the public order and ethics in public per-formance and to protect underage audiences, and the KMRB is en-trusted with the authority to deliberate and vote on the rating of a film. Members of the KMRB are appointed by the President of theRepublic of Korea among those individuals meeting certain qualifica-tions and recommended by the president of the National Academy of Arts. According to the Public Performance Act, the State can sub- sidize the KMRB to meet its expenses from the national treasury.

Mr. A, the president of a motion picture production and distri- bution company, requested rating of a film to the KMRB to screen afilm, but the KMRB decided to withhold the rating for two monthsbased on the Act because the film contained obscene material. Whenthe two-month period was over, Mr. A again applied for the rating,and the KMRB deferred the rating for another three months. Mr. Athen filed a lawsuit against the KMRB seeking revocation of the de-ferment decision, and applied to the Court for a request for consti-tutional review of the related provisions in the Promotion of theMotion Pictures Industry Act. The presiding court granted the ap-plication, and requested a constitutional review of the provisions tothe Constitutional Court.

B. Summary of the Decision

(1) Majority Opinion

The Constitutional Court issued a decision of unconstitutionality, on a majority vote of seven Justices, as follows:

Article 21(1) of the Constitution states that "all citizens shallenjoy the freedom of speech and the press, and freedom of assembly and association," and Article 21(2) of the Constitution stipulates that"licensing or censorship of speech and the press, and licensing of as-sembly and association" is not permitted. Any means of expressioncan be protected by Article 21(1) guaranteeing freedom of speech and the press, and a motion picture is clearly a means of expression pro-tected by the constitutional freedom of speech and the press. Cen-sorship as stipulated in Article 21(2) means the inspection of a view or an opinion before its expression by a State administrative agencyor a quasi-State administrative agency, as preventive measures, to judge and

assort its contents and to prohibit the expression of un-endorsed opinion. The Constitution absolutely bans such censorship, and it is not permissible even if it is based on Statute.

The KMRB can withhold a rating of a motion picture when aperson planning to show the film submits it for review. Members of the KMRB are appointed by the President of the Republic, and detailsof composition and procedures of the KMRB are to be stipulated bythe presidential decree. Furthermore, the State can subsidize KMRBfrom the national treasury. A film which did not receive a ratingby the KMRB cannot be shown in the screens around the nation,and an individual violating this rule can be made subject to criminalprosecution. Because there is no limit as to how many times theKMRB can defer a rating of a submitted film, the KMRB can pro- hibit showing of a film for an indefinite period of time. Considering these facts, it can be concluded that the KMRB is an administrativebody for all practical purposes, and that withholding the rating of afilm is censorship prohibited by the constitution.

(2) Dissenting Opinion

The KMRB is an autonomous civic group, and is not a quasi-State administrative agency. Therefore, the decision to defer therating of a film by KMRB is not a form of censorship.

C. Aftermath of the Case

On January 26, 2002, the National Assembly revised the provisionsof the Promotion of the Motion Pictures Industry Act according to thedecision of the Court. The revised Act repealed the withholding ofa film rating, and adopted the "for restricted showing" rating. Allfilms rated "for restricted showing" can only be shown at restrictedtheatres.