의료광고 플랫폼의 법적 쟁점과 정책 과제의 방향

초록

This article presents the concept of a medical advertisement platform, legal issues related to the medical advertisement platform, and the basic direction of the policy tasks of the medical advertisement platform. The key contents are summarized as follows. First, in principle, medical advertising through medical advertisement platforms should not be considered cases where medical advertising is done by persons other than medical institutions or medical practitioners. Second, when comprehensively considering the Constitutional Court's decisions on medical law provisions related to the regulation of medical advertising, it should be considered constitutionally difficult to ban medical advertisements that convey objective facts, such as prohibiting advertisements that display non-covered treatment costs of medical institutions. Third, the medical advertisement prior review system stipulated by the current medical law can be evaluated as being improved to include most media outlets within the scope of review. Of course, there are still media that are excluded from the scope of prior review, but it may be appropriate to view this issue as an issue of ‘realistic reviewability’ rather than a problem of ‘logical and institutional system consistency’ of the medical advertisement prior review system. Fourth, the current medical advertisement review system is still designed in such a way that the state strongly intervenes, so it is difficult to evaluate that independence and autonomy in medical advertisement prior review are secured in the full sense. Fifth, prohibiting medical advertisement through self-regulation that is explicitly permitted by law or that has been normatively judged to be permitted through court precedent and government authoritative interpretation is excessive regulation or infringement of constitutional rights by private individuals. Problems may arise. Sixth, in relation to regulatory methods to effectively block the distribution of illegal medical advertisements, it is necessary to consider the introduction of the so-called ‘Notice & Take Down’ system. However, the regulatory system should not be designed in a way that imposes general and active monitoring obligations on illegal medical advertisement on platforms. Seventh, when drafting and designing regulations or policies for medical advertisement platforms, it is desirable to allow as widely as possible other than strictly necessary regulations regarding the content and methods of medical advertising.

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