A. Background ofthe Case
This case held that theprovision of the Medical Service Act that prohibited medical advertisementsthat had not been reviewed in advance was unconstitutional, for violating theprinciple of prohibition of prior censorship.
The petitioners, whoare doctors and commercial advertisers, were prosecuted and tried on charges ofpublishing medical advertisements without obtaining prior review from theMinister of Health and Welfare. While their trials were pending, the petitionersfiled a request for the constitutional review of the provisions of the MedicalService Act that prohibit medical advertisements that have not received priorreview and impose a criminal penalty in cases of violations thereof(hereinafter referred to as the “Instant Provisions”).
In a previous decision(2005Hun-Ma506, June 26, 2008), the Constitutional Court declared that theprovisions of the Broadcasting Act subjecting TV commercials to prior review bythe Korea Advertising Review Board are unconstitutional, finding such reviewamounts to a form of censorship banned by the Constitution. The Court reasonedthat, even if the Review Board is a private sector organization, it is aprivate entity entrusted with administrative functions under administrativelaw, and the government intervenes in its formation and exercises direction andsupervision on the entrusted matters. Furthermore, the Korea BroadcastingCommission has the authority to enact and amend the Regulations for BroadcastAdvertisement Review that serve as a standard against which televisioncommercials are inspected.
B. Summary ofthe Decision
In this case, theConstitutional Court confirmed that the Instant Provisions violate theprinciple of prohibition of prior censorship, for the following reasons.
The Court reasoned thatthe Constitution does not provide for exceptional censorship for specificexpressions; and if the Court establishes separate areas that are not governedby the principle of prohibition of prior censorship depending on thecharacteristics of expressions or the necessity of regulation, it cannot ensurethe objective criteria for such establishment. Therefore, prior censorshipshould be seen as absolutely prohibited by the Constitution without exception,also applying to medical advertisements.
The Court held theInstant Provisions unconstitutional, for the following reasons. Although priorreview of medical advertisements is conducted by the respective medicalassociations entrusted by the Minister of Health and Welfare, the Minister ofHealth and Welfare, who is in charge of prior review under applicable law, maywithdraw such entrustment at any time and take direct charge thereof; theEnforcement Decree of the Medical Service Act directly regulates thecomposition of the review board; the chair of the relevant review authorityshall report the results of inspection and review to the Minister of Health andWelfare; the Minister of Health and Welfare has authority to provide financialsupport to medical organizations; and the Medical Service Act delegates mattersconcerning review guidelines and procedures to the Presidential Decree. Takingthese together, the Court confirmed that the respective medical associationscould not be considered to be independent and autonomous to conduct priorreview, away from the influence of administrative agencies. Thus, the InstantProvisions violate the Constitution for running against the principle ofprohibition of prior censorship.
Against this majorityopinion, Justice Cho Yong-Ho dissented, arguing that advertisements of medicalservices require reasonable regulation since medical care is directly linked topublic health. In his view, medical advertisements as commercial propagandabear little relationship with political or civic expression, so the principleof prohibition of prior censorship is not applicable for medicaladvertisements. Even if the principle of prohibition of prior censorship isapplicable, each medical association performing pre-review functions is aprivate entity that is not constitutionally authorized to exercise itself. Assuch, the Instant Provisions do not violate the principle of prohibition of pre-censorship.
C. Aftermath ofthe Case
This decision receivedmixed reviews from the academia and law practitioners. Some found it logicallyproblematic in that the Court had held the prior review system foradvertisements of functional health food constitutional in a previous decisionon July 29, 2010 (2006Hun-Ba75). They argued that the Court made a differentjudgment without any particular reason for medical advertisements that have agreater impact on public health than functional health food (Yoo Hyun-Jung, LeeDong-Pil, Lee Jung-Sun, Jeong Hye-Seung & Park Tae-Shin, Review of 2015 Major Medical Decisions).Supporters of the Court’s view argued that this decision will ignitediscussions on the improvement of the medical advertisement regulation systemin a direction suitable for a new medical and internet environment (HwangSung-Gi, A Study on Improvement Plans forthe Medical Advertisement Regulation System on the Internet; Kim Han-Nah& Kim Kye-Hyun, The Current Status ofMedical Advertisements and Their Improvements).