Child and Youth Sexual Exploitation Material | Charges of Possessing and Distributing Footage from the Nth Room Case, Concluded with Non-Prosecution

🔗Child sexual exploitation material refers to material in which a child or youth, or a person or representation that can clearly be perceived as a child or youth, appears and engages in any one of the following acts or other sexual conduct, expressed in the form of film, video, a game, or an image or footage through a computer or other telecommunications medium.

-Sexual intercourse
-Pseudo-sexual intercourse using part of the body, such as the mouth or anus, or using an instrument
-An act of contacting or exposing all or part of the body that causes sexual shame or revulsion in an ordinary person
-Masturbation

A person who produces, imports, or exports child and youth sexual exploitation material shall be punished by imprisonment for life or for at least 5 years.

A person who habitually produces, imports, or exports child and youth sexual exploitation material shall have the sentence increased by up to one-half, and an attempt to produce, import, or export child and youth sexual exploitation material is also punishable.

A person who, for profit, sells, lends, distributes, or provides child and youth sexual exploitation material, or who, for such purpose, possesses, transports, advertises, introduces, or publicly displays or screens it, shall be punished by imprisonment for a definite term of at least 5 years.

A person who distributes or provides child and youth sexual exploitation material, or who, for such purpose, advertises, introduces, or publicly displays or screens it, shall be punished by imprisonment for a definite term of at least 3 years.

A person who purchases child and youth sexual exploitation material, or who possesses or views it knowing that it is child and youth sexual exploitation material, shall be punished by imprisonment for a definite term of at least 1 year.

In addition, this past September, bills to strengthen the punishment of digital sex crimes such as deepfakes targeting children and youth and to support victims passed a subcommittee of a National Assembly standing committee.

The amendment to the Juvenile Protection Act newly established provisions for punishing the intimidation and coercion of children and youth using sexual exploitation material, with punishment heavier than under the existing Act on Special Cases concerning the Punishment of Sexual Crimes, and it also applies to sexual exploitation material created using deepfake technology.

Under the current Act on Special Cases concerning the Punishment of Sexual Crimes, a person who uses sexual exploitation material to intimidate another is punished by imprisonment for a definite term of at least 1 year, and in the case of coercion, at least 3 years.

The amendment, however, further raises the level of punishment where such offenses are committed against children and youth, providing for imprisonment of at least 3 years in the case of intimidation and at least 5 years in the case of coercion.

The Act on the Protection of Children and Youth against Sexual Abuse, amended on June 2, 2020, changed “child and youth pornography” to “child and youth sexual exploitation material,” clearly providing that pornography targeting children and youth itself constitutes sexual exploitation and sexual abuse of children and youth.

Even where a child or youth consents to the production of child and youth sexual exploitation material, or where it is produced with the primary purpose of personal possession or storage, this still amounts to the “production” of child and youth sexual exploitation material (see Supreme Court Decision 2018Do9340, Sept. 13, 2018).

If a person instructs a child or youth to film a sexual exploitation video themselves and, through this, plans the production of the video and directs the specific method, the person is deemed to have “produced” child and youth sexual exploitation material even if the person did not film it directly. Absent special circumstances, the act of production is deemed complete at the moment filming is finished and the video is saved. (See Supreme Court Decision 2020Do18285, Mar. 25, 2021.)

The client usually enjoyed watching movies and dramas and used a torrent program to download materials.

In particular, to collect movies and dramas to watch in his leisure time, the client would run several seed files at once and then save or delete them once the downloads were complete.

In this case as well, because the client had an overseas travel itinerary, he downloaded about 100 seed files in order to secure a large number of movies and dramas to watch.

After downloading, the client found a file that could be infected with a virus and deleted all of the files he had downloaded at that time.

However, among the video files the client had downloaded, there was a child and youth sexual exploitation material video, of which the client was entirely unaware.

To deny the child and youth sexual exploitation material charge, the attorney argued that attention should be paid to the file name.

It was true that one of the roughly 100 videos the client downloaded was a child and youth sexual exploitation material video, but its file name was “LOVE SO SWEET.”

The attorney emphasized that it was difficult to recognize from the file name that it was sexual exploitation material or illegally filmed footage.

To contest the child and youth sexual exploitation material charge, the attorney argued that, given the characteristics of a torrent program, the possibility could not be excluded that files the client had not selected were downloaded together.

The attorney also emphasized that, considering that no other sexual exploitation material or illegal recordings were found on the client's computer, it was difficult to conclude that the client had intentionally possessed and distributed child and youth sexual exploitation material videos.