데이터홈쇼핑에 대한 방송규제의 법적 쟁점 — 생방송 편성 금지와 화면비율 규제를 중심으로 —

Although technical limitations in the broadcasting field have been overcome, the technology path-dependent broadcasting regulations have emerged. These caused the regulatory system should be different for each broadcasting technology. However, the boom of smartphones, tablets and smart TVs and the increasing influence of online platform operators are shaking the fundamental systems of technology path-dependent broadcasting regulations. Online platforms don’t use traditional broadcasting technology, which justifies for broadcasting regulations. The problem is that online platform operators also threaten the status of shopping program-providing business (hereinafter referred to as ‘shopping PPs’). The shopping PPs are under strong regulations of the Broadcasting Act. Incorporating the TV home shopping model, online platform operations are providing ‘live commerce’ without any regulations under the Broadcasting Act. In order to be competitive with online platforms, it is also possible to consider easing regulations on asymmetric data home shopping. Currently, “prohibition of programming live broadcasting” and “screen ratio regulation (video screen is less than half of the total screen)” are applied only to data home shopping. These regulations don’t have an explicit basis in the Broadcasting Act. Legal effect is guaranteed by data home shopping guidelines and additional clauses to comply with them. Data home shopping operators fall under the category of shopping PP under the Broadcasting Act, but are subject to different regulations from TV home shopping. The most essential reason to justify these discriminatory regulations is based on broadcasting technology. TV home shopping corresponds to “television broadcasting” in Article 2 Subparagraph 1 (a) of the Broadcasting Act, but data home shopping corresponds to “datacasting”, so the regulations of both should be discriminatory. This paper judged that the data home shopping guidelines are illegal for the following reasons. In general, the definition clauses of a law, which has a regulatory nature, have a function of notifying that the objects are covered by the relevant definition and they will be regulated by the Broadcasting Act. However, specific regulations (like as prohibition of live broadcast programming and regulation of aspect ratio) are not directly derived from the definition clauses of the law. The data home shopping guidelines fall under the law-interpretation rules, and in principle, external binding legal effect is not recognized in the law-interpretation rules. In the Broadcasting Act, there are no special regulations on product introduction and sales methods related to live broadcast programming or aspect ratio composition of data home shopping. The additional clauses to comply with the data home shopping guideline is illegal as it falls under the exclusion of some legal effects, which limits the legal effect that is naturally recognized when shopping PPs are approved.