SOUTH KOREA Law and Practice Contributed by: Hyun Ho Eun, Jung-Chull Lee and Dukjoong Na, Kim & Chang
sion (KFTC), the competent authority, has expressed its position that it will actively conduct ex officio inves- tigations and take active measures against violations of the law. In addition to the KFTC, various regulatory agencies, including the Korea Communications Com- mission (KCC) and the Personal Information Protec- tion Commission, are interested in dark pattern regu- lations.
Games with speculative elements are prohibited under the GIPA, the Speculative Acts Regulation Act, and the Criminal Code, and relevant conduct is punishable by imprisonment or a criminal fine. Therefore, regardless of the type, games will be evalu- ated on a case-by-case basis for speculative activi- ties, and the Game Rating and Administration Com- mittee (GRAC) may refuse to provide an age rating or cancel a previous rating for the game. Even if there is no element of real-money betting or monetary gain, it is often the case that the game receives a 19+ rating when it is determined to be speculative, such as when it is similar to gambling or includes betting on goods within the game. In addition, as the GRAC tends to determine whether a game is speculative based on stricter standards than those imposed by the courts, games need to be reviewed on a case-by-case basis as they may be subject to rejection of rating on the grounds of their speculative nature. The GRAC’s age rating categories are as follows: • for all ages; • 12+; • 15+; and • 19+. The distribution of games without an age rating is pun- ishable by imprisonment of up to five years or a fine. Among the games rejected for game ratings, specula- tive games account for the largest portion. The type of betting games that are eligible for rat- ing, according to past rating practices of the GRAC, is limited to poker, go-stop (ie, a Korean card game) and sports betting games (collectively, “Web-Board Game(s)”). Other gambling games, such as blackjack, roulette and slots, are typically not rated and cannot be serviced if such games require users’ payment. 2.2 Land-Based Gambling General Korean gaming laws generally do not differentiate between online gaming and land-based gaming, and the same rules for speculative games apply as those set out in 2.1 Online Gambling . There are certain land- based gaming licence requirements for internet cafés
2. Jurisdictional Overview 2.1 Online Gambling
Under Korean gaming law, whether certain games are permitted, prohibited or restricted is not specifically determined by the game type or genre, but instead is determined by whether there are speculative activities (ie, they can be considered gambling). In general, real- money betting is prohibited, and bingo, casino, lotter- ies and fantasy sports are often prohibited because of their speculative elements. Under the GIPA, a speculative game refers to a game that: • either: (a) involves betting or allotment; or (b) decides the outcome by coincidence; and • causes monetary gain and loss. Furthermore, according to the Act on Special Cases Concerning Regulation and Punishment of Specula- tive Acts (the “Speculative Acts Regulation Act”), a “speculative act” is “an act of causing profit or loss of property by collecting property or monetary gain from many persons and determining the profit or loss by coincidental means”. South Korean court precedents also consider two major factors in determining if a game involves specu- lative activities: • whether the outcome is determined by coinci- dence, and depending on the outcome of the game; and • whether it is possible to directly obtain monetary gain.
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