South Korea’s Constitutional Court ruled in favor of the controversial “Shutdown law”, which restricts juveniles under age 16 from accessing online games from midnight to six in the morning. Despite constitutional decisions, the controversy continues because the Constitutional Court’s opinion was not enough to persuade the opponents. “Shutdown law”, which is based on Article 26 of the Juvenile Protection Act, was proposed as various social problems and unfortunate incidents arose from excessive gameplay. The Court gave the judgment that the regulation is constitutional as it is not against the anti-overrestriction principle. However, there were dissenting opinions.
This paper analyzes the precedent from the perspective of “Shutdown Law” as unconstitutional, by using the method of the anti-overrestriction principle which was measured to determine the constitutionality of the regulation in issue. In specific, this paper briefly introduces the Court’s opinion and dissenting opinions that were presented in 2011Hun-Ma659, 2011Hun-Ma683 precedents. After that, this paper reviews both perspectives and makes its own conclusion.
The Constitutional Court of Korea rendered 7-2 majority decision which found the current “Shutdown (System) Law” constitutional. “Shutdown Law” refers to Article 26 of the Juvenile Protection Act which forbids internet game services providers from providing such services to juveniles under age 16, from midnight to 6 a.m. This is why this law is also called the “Cinderella Law.”
The decision of the Constitutional Court is as follows: Constitutional complaint about the penalty clause is unjust because there is no immediacy of infringement on fundamental rights. For complaint about the forbidden clause, the Court reasoned that “in light of high popularity, addictiveness of online games and juveniles’ overindulgence in it, such a law is necessary to ensure the sound development of juveniles. Thus, it is not an overreaction to regulate online game for kids under age 16.”
While the Ministry of Gender Equality and Family applauded this ruling, the gam industry expressed regret. Online game users voiced their concern, as one gamer lamented, “It seems like the ruling was made to give children a modern re-enactment of the national curfew, which was abolished decades ago.”
Despite constitutional decisions, the controversy continues to this day. For example, the Regulatory Reform Committee for game, and cultural content held a press conference on the evening of the 16th of December, 2014 and announced their plan of submitting the second constitutional petition.
In my opinion, the reason for disputes of the constitutionality of “Shutdown Law” is the silence of the Court’s majority opinion about some of the issues that the minority opinion pointed out. Thus, this paper will analyze the “Shutdown Law” (hereinafter ‘precedent’) from the perspective of its abolition.
Ⅱ. Overview of “Shutdown Law”
- Definition of “Shutdown Law”
“Shutdown Law”, which blocks children under age 16 from accessing online game from midnight to 6a.m., was introduced in 2011 in order to protect the youth from internet game overindulgence. However, there are several points to note – this rule does not affect mobile games or certain games used on social networking websites.
- Related Regulations
“Shutdown Law” is based on the Juvenile Protection Act Article 26 and can be divided into two sections.
First, Article 26.1. restricts internet game providers from allowing internet games access to juveniles under the age of 16 between midnight and 6 a.m. Any person who violates this rule shall be imprisoned for not more than two years or levied fine not exceeding ten million won (Article 59.5 of Juvenile Protection Act).
Articles 26.2. and 26.3. define evaluation of game products subject to restriction. The Minister of Gender Equality and Family shall evaluate once every two years on whether the scope of game products subject to restriction on hours permissible for providing internet games late at night under Article 26.1 is proper, consulting thereon with the Minister of Culture, Sports and Tourism, and shall take measures for improvement, as prescribed by the Presidential Decree. The method and procedure for evaluation follows the Game Industry Promotion Act.
- Background of Legislating “Shutdown Law”
Since the twenty-first century, the domestic game industry is showing high growth centered on online games. Moreover, the game export is increasing every year and now accounts for a high proportion in exports of South Korea’s cultural content. However, opinions that preventing and curing addiction not only belongs to the individual responsibility but also to the government’s as excessive
gameplay caused various social problems. There were some unfortunate incidents involving online games, and the table below shows some major social problems.
For these reasons, the Congress voted for the amendment of the Juvenile Protection Act to limit the hours of juveniles’ playing online games.
- Examples of Game Regulation in Overseas
Thailand introduced the “Online Game Shutdown System” that prohibits teenager under age 18 from playing online games from 10:00 p.m. to 6:00 a.m. in 2003. It is different from Korea’s “Shutdown Law” in that it is not compelled by the law, only recommended by the government. However, the system became a mere scrap of paper as it was not easy to authenticate the identity of online game users since juveniles can easily access online games with others’ identification.
(2) The United States
In the United States, many private organizations perform investigation, education and campaigns to prevent excessive gameplays. The ratings of games and distribution of guidebooks on gameplays are also promoted by these organizations. For example, private institutions such as the ‘Entertainment Software Rating Board’ and ‘Parent Teacher Association’ give guidelines to school parents.
The online game industry itself and parents are in charge of preventing children’s excessive gameplays. In addition, ‘Japan Online Game Association’ announces game guidelines through the websites of member companies.
Ⅲ. Analysis of precedent
The issues of this constitutional complaint were that the “Shutdown Law” restricts (1) right to freedom of occupation of online game providers, (2) general right to freedom of action of the juveniles under age 16, (3) right to freedom of education of parents and the (4) discrimination against game users and providers. This paper will focus on the three fundamental rights which are subject to the anti-overrestriction principle.
- The anti-overrestriction principle
The anti-overrestriction principle is a method to determine constitutionality of the regulations in South Korea. It is composed of four general rules: (1) rule of legitimacy of legislative purpose, (2) rule of proper means to achieve the legislative purpose, (3) rule of least restriction, (4) rule of balance between the legal interests and private interests. The following analysis of the precedent will be based on above rules.
(1) Rule of legitimacy of legislative purpose
1) Court opinion
The majority of judges claim that as the purpose of this provision is to secure the sleep time of juveniles, prevent excessive gameplay or addiction to games, eventually lead the development and growth of juveniles and prevent social problems caused by internet game addiction, it is legitimate.
2) Dissenting opinion
Dissenting opinions refute that it is difficult to conclude that the main reason for overindulgence in online games is playing online games late at night. Apart from recreational factors of online games, there are other various causes of the internet game addiction such as social alienation and, increase in loneliness. As the causes of excessive gameplay or addition are complex and diverse, simply prohibiting late-night gameplay could not be the fundamental solution to solve this problem.
Besides, the other purpose of regulation to secure the sleep time of juveniles – is insufficient to meet the conditions stated in Article 37.2 of Constitution of the Republic of Korea.
The majority opinion is convincing enough for the new system to be introduced because this provision is established to protect adolescent, which is the state’s duty. Thus, it satisfies the rule of legitimacy of legislative purpose.
(2) Rule of proper means to achieve the legislative purpose
1) Court opinion
As restricting internet game services providers from providing game services to juveniles under age 16, from midnight to 6 a.m. can contribute to achieve the legislative purpose, the regulation is a proper means.
2) Dissenting opinion
Dissenting opinion urged that even if the legislative purpose is legitimate, it is not an appropriate means to achieve the purpose for following reasons.
Playing games can be defined as a personal hobby or recreational activity. As use of the internet has become common, internet is now generally used in daily life. For example, it is common to use internet to search and share information, exchange ideas, or purchase goods. Likewise, the increase in playing games based on internet services is a natural phenomenon.
However, this provision seems to be based on the view that games are worthless or adversely affect the growth and development of youths. Furthermore, it is expected that juveniles will go to bed earlier if the late-night game playing is banned. However, since there are many environmental factors that disturb sleep, blocking juveniles from playing online games may not bring the significant change to their sleeping hours.
The majority of judges did not specifically define their opinions. However, the grounds suggested by dissenting opinions are considerable. The majority opinion described juveniles as people who lack self-control over how much time is spent on gameplay, unlike adults. That is much to be deprecated.
First, as dissenting opinions are stated, we cannot rush to the conclusion that preventing online games directly leads juveniles to get enough sleep. Online games are not the only form of addiction available to teenagers. Youths may play other games such as mobile phone games, CD games, watch movies or read novels. If the law declares to protect juveniles from addictions, it should shut down all types of entertainment.
Moreover, teenagers usually stay late at night to study nowadays. In the opinion of the Court, legal restrictions should also be imposed on after school-‘self-study sessions’ and private institutions. From this point of the view, we can ensure that is not the right way to achieve the legislative purpose.
Next, “Shutdown Law” only prevents playing online games late at night. This means the system only partially limits the total time of playing online games, which has direct relation to excessive gameplay or addiction. Restricting total gameplay time could be a more proper means to achieve the goal.
(3) Rule of least restriction
1) Court opinion
The Court insisted that when a person is being excessively immersed in or addicted to online games, the right function of games is no more expectable. Game addiction may result in deterioration in health, destruction of life environment, and change in personality such as plummeting into depression and confusing virtual spaces with the real world, which deter relationships with teachers and friends. The Court specifically singled out that as online games are based on interactivity on the web, they are more additive and easily lead kids to play for long hours. From these reasons, the Court concluded that the law was necessary.
Therefore, time regulation for juveniles’ excessive use of internet games is necessary. Viewed in this light, as this law regulates late-night gameplay which is not easy to be controlled even at home and is subjected to juveniles under age 16 only, the time regulation by “Shutdown Law” is not excessive.
Meanwhile, the Game Industry Promotion Act enacted the “Selective Shutdown System” which restricts gameplay time when juveniles or their legal representatives request. This system is used by juveniles themselves and legal representatives aware of the dangers of excessive gameplay or addiction. They can choose the time period and ask the game providers for restriction. However, this “Selective Shutdown System” is not frequently used as it is based on voluntary efforts, and this system itself is insufficient to deal with game immersion or addiction. Therefore, it is difficult to judge whether the “Selective Shutdown System” is a less restrictive method than the original system.
2) Dissenting opinion
Dissenting opinion disagreed with the major opinion, saying that “Even if this law is the proper means to achieve the legislative purpose, it is an excessive action limiting fundamental rights, thus violates the rule of least restriction.”
The minority opinion also stated that this system was designed to prevent addictions caused by playing online games for excessive hours, which means it was not introduced because online games are harmful. Therefore, in cases where there is no concern about adverse effects resulting from excessive online gameplays, for example, if progamers and legal representatives file for removal of restrictions, the system should admit exceptions.
It is the parents’ role to decide their children’s total time and time period of playing games. This is the fundamental right to be respected. Thus, if there are other means which guarantee the autonomous decision of people and minimize the violation of basic rights, “Shutdown Law” is not the least restrictive method to achieve the legislative purpose.
However, as everyone knows, “”Selective Shutdown System” which restricts gameplay hours when juveniles or legal representatives’ request is stated in the Game Industry Promotion Act and taken into effect since the 22nd of January, 2011, this system violates the rule of least restriction.
Dissenting opinion asserted that “Shutdown Law” unnecessarily restricts the right of education of parents, as “Selective Shutdown System” which enables parental monitoring and control of their own children is a better alternative.
Although the Court refused minority opinions on the ground that “Selective Shutdown System” is not frequently used, introducing “Shutdown Law” cannot be justified because parents are not choosing “Selective Shutdown System”. It is because the word ‘selective’ itself means “affecting or concerned with only a small number of people or things from a larger group”- it is the parents right to choose or not to choose to use “Selective Shutdown System”. Consequently, “Shutdown Law” infringes parents’ rights of education without any foundation.
(4) Rule of the balance between legal interests and private interests
1) Court opinion
This prohibition first limits online game providers from providing their services to juveniles under age 16 from midnight to 6 a.m. which are normally sleep hours. It also restricts the rights of juveniles who want to play online games and their parents who want to allow their children to do so. However, the decrease in social cost caused by preventing online game addiction and public interests resulted by healthy growth of human resources is much bigger than the private interests mentioned above. Accordingly, “Shutdown Law” does obey the rule of balance between the legal interests and private interests.
2) Dissenting opinion
Dissenting opinion suggested a few reasons to support the contrary opinion. First, the judges pointed out that the online game usage of juveniles under age 16 was not high enough to worry about. Moreover, this system is not very effective as it cannot restrict juveniles who use their parents’ ID without their full permission to continue gameplay at night or play online games provided by foreign game providers. On the contrary, general right to freedom of action of juveniles under age 16 and, right to freedom of education of parents severely infringed by “Shutdown Law “.
Moreover, this regulation may lead to contraction of the domestic online game market which accounted for 60 percent of the contents industry and has annual sales exceeding 10 trillion won. It could also lead the domestic online game providers to move overseas to bypass the restrictions. As a result, tremendous losses in the whole online game industry may appear. Therefore, “Shutdown Law” does not obey the rule of balance between the legal interests and private interests.
The majority opinions did not mention a single word about the effects on sales of domestic online game providers. They only touched on the issue of the cost, saying that there is no additional cost needed for game providers to manage their user authentication system as it is already required by the Game Industry Promotion Act. The Court should consider the benefits of online game industry and effects on game providers just like the dissenting opinions mentioned. The online game industry is emerging as a promising business for the current and next generation, and Korean companies are the leaders of the global online game market.
Besides, the public interests to be achieved by “Shutdown Law” are a little ambiguous. Public interests resulted by healthy growth of human resources could be an example. As mentioned above, game addiction is caused by excessive game playing, not by playing games late at night. Thus, this ground is not enough to prove the superiority of public interests. The Court should provide reasonable grounds to confirm the constitutionality of “Shutdown Law”.
A considerable amount of time has passed since the introduction of “Shutdown Law” and comments seem to raise questions about the effectiveness of the law and infringement on fundamental rights are on the increase.
To sum up, what should we do? First, we need a radical change in the views on online gameplay. The current system needs to be changed. It is well-known that teenagers are under an overwhelming amount of stress, and playing online games at an appropriate time is good for stress relief. Moreover, playing games also promotes the development of children’s brain. Thus, the government should not only regulate online game providers, but also educate juveniles who have high possibility to fall into excessive gameplay in cooperation with teachers and private organizations like foreign countries do. The education of juveniles, for instance, teaching them the way to develop healthy gameplay habits and providing addiction counseling, seems to be more logical solutions to the problem.
On the 14th of November, 2014, EunHee Kang, a member of the National Assembly, suggested the revision of the Game Industry Promotion Act, to amend the age limits of “Shutdown Law” and “Selective Shutdown System” to be identical (The current age limit of “Selective Shutdown System” is under age 18). This revision was suggested to increase the effectiveness of “Selective Shutdown System” and lighten the burden of game providers. If the amendment passes, unconstitutionality of this system will be decreased. Moreover, the government should encourage the use of “Selective Shutdown System” rather than the current system that forces to apply “Shutdown Law”.
 Kang Ju-won, Korea’s “Shutdown Law” Found Constitutional (Apr. 25, 2014), Klawguru.com, http://klawguru.com/2014/04/25/koreas-shutdown-law-found-constitutional/ (last visited Jan. 26, 2015).
 The Constitutional Court’s upholding of Shutdown law is causing public uproars, Whowired Korea (Apr. 27, 2014), http://www.whowired.com/news/articleView.html?idxno=400869 (last visited Jan. 16, 2015).
 See generally 조형근, 게임 셧다운제의 도입과 향후 정책 방향, National Assembly Research Service, 15-22 (2011).
 Jiyeon Lee, South Korea pulls plug on late-night adolescent online gamers, CNN International (Nov. 22, 2011), http://edition.cnn.com/2011/11/22/world/asia/south-korea-gaming/ (last visited Jan.16, 2015).
 손병일, 태국 온라인게임 시장동향(2), Korea Trade-Investment Promotion Agency (Dec. 26, 2003). http://www.globalwindow.org/gw/overmarket/GWOMAL020M.html?BBS_ID=10&MENU_CD=M10103&UPPER_MENU_CD=M10102&MENU_STEP=3&ARTICLE_ID=2074099 (last visited Jan 16, 2015).
 나채식, 청소년 게임과몰입 해소 논의와 정책적 제언, 이슈와 논점, Issue 159, 3 (2011).
 Id. at 5.