Child Sexual Exploitation Material | An Image Synthesizing a Nude Photograph onto the Face of a Child or Youth Is Not 'Child or Youth Sexual Exploitation Material'

This was a case in which whether the material constituted child sexual exploitation material was at issue.

The defendant was indicted on charges of producing, possessing, and distributing sexual images synthesized using actual facial photographs of victims who were children or youths, or photographs processed from them.

The facts charged were largely divided into a violation of the Act on the Protection of Children and Youth against Sexual Abuse (a Korean statute regulating sexual exploitation of children and youth, with no direct common-law equivalent) (production and distribution of sexual exploitation material and possession of sexual exploitation material) and a violation of the Act on Special Cases concerning the Punishment of Sexual Crimes (editing and distribution of false video material, and obscenity via telecommunication media (a Korean offense under the Sexual Violence Punishment Act of conveying sexually humiliating material through telecommunication media, with no direct common-law equivalent)).

The issue was whether the synthesized photographs or deepfake videos constituted 'child or youth sexual exploitation material' under the Act on the Protection of Children and Youth against Sexual Abuse.

As to whether the material constituted child sexual exploitation material, the Supreme Court also affirmed the lower court's determination and dismissed the prosecutor's final appeal.

The Supreme Court found that the lower court's conclusion was justified, namely that "because the synthesized photographs produced by the defendant did not involve the appearance of actual children or youths, they are difficult to regard as sexual exploitation material under the Act on the Protection of Children and Youth against Sexual Abuse."

While the Supreme Court pointed out that the lower court's reference to a 'case in which a child or youth appears' was somewhat inappropriate, it found that this had no effect on the conclusion.

Regarding child sexual exploitation material, this precedent is a case that concretely set out the standards for handling cases involving synthesized material of children and youths.

Building on this, Daeryun Law Firm LLP develops the following strategy.

▶Precise Analysis of the Facts

We closely examine technical elements such as the circumstances of production of the synthesized material used in the case, the source of the original data, and the metadata.

By analyzing the method of producing the synthesized material and the setting of the background and situation, we clearly distinguish whether an actual child or youth appeared or whether it is merely synthesized representation material.

▶Securing Expert Opinions

Through collaboration with video and photograph analysis experts and the firm's in-house digital forensics center, we secure objective materials regarding whether the material is synthesized and whether it can be recognized as such.

This allows us to effectively rebut the prosecution's argument that the material constitutes 'representation-type sexual exploitation material.'

▶Strategy for Legal Rebuttal

We adopt the point that 'no actual child or youth appeared' as the core defense argument.

In addition, on the basis of the characteristics of the synthesized material, such as the appearance or state of physical development, the unrealistic nature of the setting, and the particular nature of the source, we systematically argue that it is difficult to recognize the material as representation-type sexual exploitation material.

▶Securing Minimal Legal Liability

Even where the social harmfulness of the synthesized material is recognized, we emphasize that the conduct constitutes other constituent elements, such as the editing and distribution of false video material under the Act on Special Cases concerning the Punishment of Sexual Crimes, rather than the severe punishment under the Act on the Protection of Children and Youth against Sexual Abuse (life imprisonment or imprisonment for at least five years), thereby minimizing the defendant's legal burden.

At Daeryun Law Firm LLP, attorneys experienced in sexual offense matters, who have handled a wide range of sexual offense cases such as aggravated rape, statutory rape of a minor, and combined sexual offense cases involving the installation of hidden cameras and rape, take a central role in providing assistance throughout all legal procedures.