Distribution of Obscene Material

In the crime of distribution of obscene material, obscenity means an expressive work that, by ordinary social standards, arouses the sexual desire of an ordinary person, harms a sense of sexual shame, and runs counter to sexual moral norms.

Whether material is obscene is determined by comprehensively evaluating the following factors as a whole.

The following examines actual cases of the crime of distributing obscene material.

1. Man Who Viewed Obscene Videos on a File-Sharing Program Found Guilty of Distributing Obscene Material

A viewed obscene material and hidden-camera footage through a file-sharing program.

By its nature, the site does not exchange a single file one-to-one; rather, it has a function that simultaneously receives fragments of the same file from multiple users who hold it and automatically uploads the stored file.

The court found that A appeared to be well aware of how to use the program and how to share files, and it imposed a fine.

2. Conviction Upheld on Charge of Aiding Distribution Under the Pretext of Deleting Obscene Material

A, known as a "digital undertaker," was brought to trial on the charge that, under the pretext of deleting obscene material, A provided 6 million won in advertising fees to a person connected with the largest domestic obscene-material site and monopolized the authority to delete illegal videos within that site.

The courts at first instance and on appeal found that A's conduct "created a structure that promoted distribution."

They held that even a case in which a person obtains exclusive authority within an obscene-material distribution structure and gains profit, rather than merely acting as an agent for deletion requests, may be punished as "aiding."

▶Be careful with statements in the early stage of the investigation

-The initial content stated at the police station determines the direction of the investigation and trial.
-If an unfavorable statement is made, it is difficult to reverse it with later statements.

▶Reviewing denial of intent, public nature, and the scope of distribution

-After identifying the facts, intent may be reviewed for denial, or where the act took place in a non-public setting, whether the public nature is established may be reviewed.

▶Responding to the analysis of seized electronic devices

-Mobile phones, laptops, and the like may become subject to forensic analysis, and a response confirming the lawfulness of the search and seizure procedure, among other matters, is necessary.

TIP. How to respond on your own

-Confirm whether the investigation can be recorded (a request must be made in advance)
-Prepare a written statement in advance: organize the position that there was no intent to distribute and the denial of intent and public nature
Before the suspect interrogation, be sure to clearly confirm the alleged facts
-Secure copies of any submitted materials in advance
-Confirm that the right to remain silent and the right to counsel have been notified

▶Prompt reporting

- You can file a report with the National Police Agency Cyber Crime Report Center, the Digital Sex Crime Victim Support Center, or the Korea Communications Standards Commission.

▶Requesting deletion support

- If the victim's video or photo has been posted, you can request its deletion from the Digital Sex Crime Victim Support Center.
- Upon receiving a request to delete information, an information and communications service provider must take necessary measures such as deletion or temporary measures without delay and immediately notify the applicant and the person who posted the content.

▶A civil claim for damages is possible

- A claim for damages may be filed on grounds such as the psychological suffering and social disadvantage caused by the distribution.

TIP. How to respond on your own

- Secure evidence
- Request deletion
- Describe the harm specifically
- Prepare the content causing sexual humiliation, the circumstances of distribution, and the evidence

-Denial of publicity: Publicity may be denied on grounds such as a one-on-one conversation or upload to a private cloud.

-Dispute over intent: It may be argued that the transmission was possible through a simple download or an automatic-save environment.

-Grounds for mitigation through voluntary surrender: If the person became aware of the distribution and reported it voluntarily first, this serves as a mitigating factor.

-Use of sentencing materials: A certificate of completion of education to improve awareness of gender issues, a community service plan, a letter of apology, and similar documents may be submitted.

- Establishing the possibility of secondary distribution: emphasizing the concern that the nature of the platform may lead to rapid spread

- Civil claim for consolation money: detailing the mental harm and social harm, such as the effect on work and school life

- Harm from exposure of personal identity: reviewing whether a violation of the Personal Information Protection Act should be joined where a real name, face, or voice is exposed

Because the crime of distribution of obscene material occurs through platforms that anyone can access casually in the digital environment, it is a representative crime in which a simple mistake or a thoughtless act can lead to serious criminal punishment.

In particular, acts that are regarded as socially sensitive, such as distribution targeting minors, posting one's own filmed material without subsequent consent, and the unauthorized sharing of another person's video, carry a far higher level of punishment than ordinary distribution of obscene material, and they are regarded as digital sex crimes subject to severe legal and social sanctions.

Recently, as investigative agencies have actively used digital forensic technology, cases in which public nature and intent to distribute are recognized and a guilty verdict is rendered have been increasing.

In this way, in cases involving the crime of distribution of obscene material, where the legal criteria are very detailed and the process of analyzing digital evidence is also intricately intertwined, the initial response can determine the outcome.

Because all procedures are precisely connected, from statements in the early stage of the investigation to the submission of evidence, the forensic response, the composition of sentencing materials, and negotiations for the recovery of damages, there are substantial practical limits to responding alone.

In particular, the assistance of an attorney may be necessary in the following cases.

-Where it is unclear whether the video one distributed has a public nature
-Where the investigative agency is conducting a forensic analysis of electronic devices
-Where settlement with the victim is difficult
-Where one is named as a suspect even though the source or author of the video is not oneself
-Where the case occurs during a repeat offense or during the period of a suspended sentence

This firm responds to civil and criminal litigation through a task force response team of sex crime attorneys who have extensive experience handling digital sex crime cases, including the crime of distribution of obscene material.