Constitutional Court Rules Pre-Approval of Medical Device Advertisements 'Unconstitutional'

[Image source=Yonhap News]

[Asia Economy Reporter Baek Kyunghwan] The Constitutional Court has ruled that the legal provision prohibiting medical device advertisements without prior review constitutes prior censorship, which is prohibited by the Constitution, and is therefore unconstitutional.

On the 28th, the Constitutional Court announced that it ruled unconstitutional by an 8 (unconstitutional) to 1 (constitutional) vote in a constitutional review requested by the Jeonju District Court, which argued that Article 24, Paragraph 2, Subparagraph 6 of the Medical Device Act, which prohibits medical device advertisements without prior review, infringes on freedom of expression.

Medical device seller Company A posted medical device advertisements on a blog and was suspended from sales operations for three days by Jeonju City in January 2017 for not obtaining prior review.

Company A filed an appeal and a lawsuit to cancel the suspension and requested a constitutional review from the court. The court accepted the request and referred the constitutional review to the Constitutional Court.

The Constitutional Court judged that although the advertisement review is conducted by the private organization Korea Medical Device Industry Association, the Minister of Food and Drug Safety sets the review standards and methods, making the medical device advertisement review an administrative 'prior censorship.' In particular, the court stated, "Prior censorship under the Constitution is absolutely prohibited without exception if it concerns the protection of freedom of expression," and "Medical device advertisements, as commercial advertisements, are protected under the constitutional freedom of expression and are also subject to the principle prohibiting prior censorship."

The Constitutional Court had previously ruled unconstitutional in June 2018 on a legal provision requiring prior review of advertisements promoting the functionality of health functional foods, stating it constituted prior censorship. A Constitutional Court official said, "This decision reaffirms the existing reasoning that prior review involving possible administrative intervention constitutes prior censorship prohibited by the Constitution."

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