Commercial advertisement

In Korea, it has been often argued whether regulatory restrictions on the commercial advertisement (상업광고) is allowed under the Constitution. In principle, commercial advertisement is protected by the freedom of speech and the freedom of business (vocation). The Constitution ensures the economic order based on respect for the freedom and creative initiative of enterprises and individuals in economic affairs. Article 119 (1). The Constitutional Court rendered a decision 2003Hun-Ka3 what kind of commercial advertisement is allowed or not.

Key words
commercial advertisement, medical service, freedom of speech, freedom of vocation, fair competition

Restrictions on the Commercial Advertisement
If any restriction on the commercial advertisement is necessary, it should be justified in accordance with the principle of proportionality (the rule against excessive restriction) derived from Article 37(2) of the Constitution.

However, commercial advertisement differs from political and civil expressions of idea or knowledge. And it should be noted that the effect of commercial advertisement on development of personality and individuality is not significant.

Therefore, in reviewing the restriction of commercial advertisements under the principle of proportionality, it is proper for the standard of "the least restriction" to be modified to reviewing "whether the restriction is in the necessary scope to fulfill the legislative purpose".

In case of Advertising Medical Services
What if an advertisement on the skills or the examination and treatment methods of a medical person misguides the consumers?

It might cause consumers to have unverified medical expectations, or it hinders fair competition. Therefore, this kind of medical advertisement cannot be permitted. In such cases, strong restriction is needed to secure the health of the citizens and a sound medical competition order.

Some Cases permitted by Law
However, a medical advertisement, if based on objective facts, giving information of the concerned medical person's medical techniques or examination and treatment methods without exaggeration, is important information of medical service. Rather it may enhance public interest by helping consumers make reasonable choices and by promoting fair competition among medical persons.

Conditions for Good Medical Advertisement
Individuals can perceive their best interests when sufficient information is given. The best method for such a purpose is not to close the means of communication but to open them.

The question is to block medical advertisements that may blindfold or deceive medical consumers, and certainly not to block all medical advertisements concerning the skills and the examination and treatment methods. It is true that medical advertisements deal with professional and technical information and, thus, makes it difficult for the general public to judge their value.

Effective Circulation of Information in Need
However, if the law makes it impossible for the consumer to know which specific medical person has what kind of technique or ability and how he or she examines and treats a patient, this hinders the effective circulation of information by cutting off the consumer from important specific medical information.

And it cannot be said that the restriction of the commercial advertisement, which is the subject of freedom of speech and freedom of business, has been narrowly tailored to the extent necessary for attaining the legislative purpose.

Alternative Control
Besides the provisions of the Medical Service Act, the Fair Advertisement Act, the Consumer Protection Act, and the Monopoly Regulation and Fair Trade Act can control false, fraudulent or exaggerated advertisement "concerning skills and examination and treatment methods of a medical person".

Conclusion
Therefore, the provision in question, Article 46(1) of the Medical Service Act, that prohibits advertisement of the skills and the examination and treatment methods of medical persons and punish its violation with a fine, exceed the necessary degree to attain the legislative purpose, and thus, violate the rule of the least restriction. The provisions infringe on freedom of expression and freedom of occupation in violation of the principle of proportionality set forth in the Constitution. The Constitutional Court held the part of Article 46(3) on prohibition of advertisement of the Medical Service Act (before revised by Act No. 6686 on March 30, 2002) that states "the skills and methods of the examination and treatment of a specific medical institution or specific medical person" and the part of Article 69 of the same Act, which states the violation of the above prohibition of advertisement, are unconstitutional.