Advertising to minors under Korean Law

Citation

Oh, B. and Chun, K.-H. (2014), "Advertising to minors under Korean Law", Young Consumers, Vol. 15 No. 4. https://doi.org/10.1108/YC-09-2014-00474

Advertising to minors under Korean Law

Article Type: Legal briefing From: Young Consumers, Volume 15, Issue 4

1. Introduction

In Korea, advertisements are generally subject to the Fair Labelling and Advertising Act, which is enforced by the Korean Fair Trade Commission. In addition to this statute and other restrictions on unfair advertisement, advertisements to juveniles are governed by other statutes, chiefly the Juvenile Protection Act (“JPA”) and the Act on Promotion of Communications Network Utilization and Information Protection (“Network Act”).

At the outset, under many of the applicable statutes and regulations, minors (i.e. children and juveniles) are defined as persons under the age of 18 years. However, the Korean Communications Standards Commission’s (“KCSC”) Broadcast Advertisement Review Regulation (“BARR”) under the Broadcasting Act (which is further discussed below) defines “juvenile” as a person under the age of 19 years and a “child” as a person under the age of 13 years.

2. Restrictions on advertisements deemed harmful to juveniles

2.1 Restrictions under the JPA

The JPA prohibits the installation, posting or distribution of “media products” deemed harmful to juveniles (“Harmful Media Products”) and advertisements of substances deemed harmful to juveniles (“Harmful Substances”) at any business establishment that is accessible to or employs juveniles or at places accessible to the public. The JPA also prescribes that Harmful Media Products and Harmful Substances shall not be sold, rented, distributed or offered for viewing or usage to juveniles.

Under the JPA and its Enforcement Decree, “media product” includes “advertising flyers distributed in indoor areas such as offices or homes, or other advertisements and promotional materials similar thereto” and “outdoor advertisements and promotional materials contained, posted, displayed or included in any other form in any media”. Harmful Media Products are those media products designated by the Commission on Youth Protection[1], a government agency under the supervision of the MOGEF. Harmful Substances are drugs and other substances deemed harmful to juveniles, including alcoholic beverages under the Liquor Tax Act, tobacco products under the Tobacco Business Act, narcotics as defined in the Act on the Control of Narcotics and Others and hallucinogens as defined in the Toxic Chemicals Control Act.

A violation of the above requirements under the JPA is subject to a corrective order by the MOGEF or the heads of the relevant municipalities, and/or imprisonment of up to two years or criminal fine of up to KRW 10 million.

2.2 Restrictions under the network act (for information transmitted over telecommunications network)

The Network Act applies to information transferred or received over an “information and communications network” (“Telecommunications Network”), which is defined as “information and communications system for collecting, processing, storing, searching, transmitting, or receiving information by means of telecommunications facilities or a combination of telecommunications facilities, computers and applied computer science”. (A typical example would be the Internet.) The Network Act prohibits

• the transfer over a Telecommunications Network of any information advertising a Harmful Media Product, whether in code, text, voice, sound, image or video format, to a juvenile; and

• the public display of such information without measures to restrict access by juveniles.

Further, a person who wishes to provide Harmful Media Products must comply with other requirements under the Network Act, including labeling obligations and verification of the recipient’s age. For example, a person transmitting a Harmful Media Product over a Telecommunications Network must indicate (in voice, text or letter format that is easily accessible) that the product must not be used by persons aged under 19 years.

2.3 Restrictions under the broadcasting act (for broadcast advertisements)

Under the Broadcasting Act, the KCSC is authorized to conduct ex post review of broadcast advertisements and impose administrative fines in accordance with the standards established by the KCSC. In this connection, the KCSC has established the BARR which, as aforementioned, makes a distinction between children (defined as persons under the age of 13 years) and juveniles (defined as persons under the age of 19 years).

2.3.1 Broadcast advertisements targeting children

The BARR prohibits certain types of advertisements directed toward children that may mislead them as to the nature of the advertised product. Specifically, the BARR provides that in view of the level of an average child’s judgment and experience, the following may not be used in broadcast advertisements for toys, game consoles or other products likely to attract a child’s attention:

• statements exaggerating the product’s size or ratio;

• statements that make it unclear whether a toy moves mechanically or must be moved manually; and

• sounds or statements that may cause the child to mistake a toy for a real-life object.

Broadcast advertisements targeting children may not highlight ancillary products or giveaways. Also, if any parts or components are required for the operation or use of the advertised product, the advertisement must clearly indicate such fact, and the price of the advertised product and any part or component thereof must be separately indicated.

Finally, the BARR provides that advertisements featuring hosts or characters of broadcast programs targeting children shall not be aired during advertisement breaks in such programs, to avoid giving children the impression that the advertisements are part of the program. However, there are ongoing discussions among the relevant agencies regarding eliminating that requirement, as further discussed below.

2.3.2 Broadcast advertisements targeting juveniles

The BARR prohibits the usage of expressions that may “inhibit the proper behavior of juveniles”, e.g. expressions that would encourage underage drinking. The BARR also prohibits the broadcast of advertisement of Harmful Media Products during and immediately before and after a program that has been rated for viewing by children and juveniles.

2.3.3 Discussions regarding deregulation

Recently, the Korea Communications Commission, which has oversight authority over the KCSC, has been leading discussions about relaxing some of the regulatory requirements for broadcast advertisements, including the aforementioned prohibition on the airing of advertisements featuring hosts and characters of children’s programs immediately before or after such programs. These discussions have been prompted by the recent presidential initiative for deregulation and regulatory reform to spur economic growth. As the discussions are ongoing and no consensus has yet been reached, the future developments should be closely monitored.

3. Other product-specific restrictions on advertisements

3.1 Foods likely to be preferred by children

The Special Act on Safety Control of Children’s Dietary Habits imposes restrictions on advertisements of certain foods that are likely to be preferred by children, such as ice cream, candies and other snacks. Any person manufacturing, processing, importing, distributing or selling such foods may not advertise free giveaways of toys or other objects likely to induce children to buy the product.

Advertisements of low-nutrient, energy-dense, and highly caffeinated foods may not be broadcasted between 5 and 7 p.m. or during advertising breaks of programs that mainly target children.

3.2 Tobacco, liquor and other products deemed harmful to children

Additionally, advertisements of certain specific categories of products are regulated in view of their product characteristics; for example, alcohol and tobacco products are deemed as Harmful Substances under the JPA, and advertisements thereof are subject to the aforementioned restrictions and prohibitions. Also, under the BARR, persons appearing in liquor advertisements must be at least 19 years of age and no image or voice of a juvenile may be depicted in them.

Poster advertisements of tobacco products may be posted only inside the retailer’s shop, and tobacco companies cannot sponsor events targeting women or juveniles. Also, tobacco advertisements may not appear in magazines that target children, and broadcasting tobacco advertisements are prohibited without any exception.

Finally, the JPA prohibits advertisements of certain other categories of products deemed to be harmful to juveniles, e.g. products that may encourage obscenity, violence, cruelty or gambling.

This article is published in conjunction with the Global Advertising Lawyers Alliance (http://www.gala-marketlaw.com). GALA is an alliance of lawyers located throughout the world specializing in advertising law.

Note

1. A list of those products (in Korean) is available on the Ministry of Gender Equality and Family’s (“MOGEF”), available at: http://www.mogef.go.kr/korea/view/policyGuide/policyGuide07_04_05.jsp

Brian Chung Oh and Kee-Hong Chun

Brian Chung Oh and Kee-Hong Chun is a Attorney, both based at Kim & Chang, Seoul, Korea.