CONTENTS
- 1. A Case in Which Whether the Material Constituted Child Sexual Exploitation Material Was at Issue
- - The First Instance Court's Determination Regarding Child Sexual Exploitation Material
- - The Second Instance Court's Determination Regarding Child Sexual Exploitation Material
- 2. The Supreme Court's Determination on Whether the Material Constituted Child Sexual Exploitation Material
- - The Significance of This Judgment
- 3. What Is Daeryun's Strategy Regarding Child Sexual Exploitation Material?
1. A Case in Which Whether the Material Constituted Child Sexual Exploitation Material Was at Issue
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.
The First Instance Court's Determination Regarding Child Sexual Exploitation Material
The court of first instance held that, because the synthesized photographs were not videos in which actual children or youths appeared, they were difficult to regard as 'child or youth sexual exploitation material' under Article 2, Item 5 of the Act on the Protection of Children and Youth against Sexual Abuse.
Accordingly, the court found the defendant not guilty as to the charges of producing and distributing sexual exploitation material, while it recognized the alternative facts charged, namely the violation of the Act on Special Cases concerning the Punishment of Sexual Crimes (editing and distribution of false video material), and rendered a guilty judgment on that part.
"Child or youth sexual exploitation material" means material in which a child or youth, or a person or representation that can be clearly recognized as a child or youth, appears and engages in any of the acts under each subparagraph of Item 4 or any other sexual act, and which takes the form of a film, video, game, or an image or video through a computer or other telecommunication medium.
The Second Instance Court's Determination Regarding Child Sexual Exploitation Material
The court of second instance also upheld the determination of the court of first instance.
On the ground that the synthesized photographs produced by the defendant were difficult to regard as sexual exploitation material under the Act on the Protection of Children and Youth against Sexual Abuse, the court found that part not guilty, while it likewise recognized the charge of editing and distribution of false video material as guilty.
2. The Supreme Court's Determination on Whether the Material Constituted Child Sexual Exploitation Material
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.
-An actual child or youth must appear for the material to be recognized as 'sexual exploitation material in which a child or youth appears.'
-Synthesized photographs and the like are images created by their author, so an actual child or youth cannot be regarded as having appeared.
-However, if the synthesized material can be clearly recognized as a child or youth, it may constitute sexual exploitation material as a 'representation.'
-In such a case, whether the material so qualifies is determined by comprehensively and holistically considering factors such as appearance and physical development, age and identity, source and circumstances of production, and the setting of the background and situation.
The Significance of This Judgment
This judgment is significant in that it first clearly distinguished between 'sexual exploitation material in which a child or youth appears' and 'sexual exploitation material in which a representation that can be clearly recognized as a child or youth appears.'
In particular, it made clear that synthesized images or deepfake videos do not, as a rule, constitute sexual exploitation material in which an actual child or youth appears.
The Supreme Court also set out standards for determining whether a deepfake or synthesized material constitutes representation-type sexual exploitation material.
By holding that various factors must be comprehensively considered, including the person's appearance and state of physical development, actual age or identity, the source and circumstances of production of the synthesized material, and the setting of the background and situation, this precedent provides concrete examination standards on a case-by-case basis at the investigation and trial stages going forward.
In addition, this judgment reaffirmed the principle of nulla poena sine lege and strictly limited excessive punishment by which synthesized material not involving an actual child would immediately be regarded as constituting the crime of producing sexual exploitation material under the Act on the Protection of Children and Youth against Sexual Abuse (life imprisonment or imprisonment for at least five years).
At the same time, the judgment is assessed as having sought a balance between the protected legal interest of the sexual self-determination of children and youths and legal stability, by leaving open the path to punishment, where the social harmfulness is significant, through the application of other constituent elements such as the crime of editing and distributing false video material under the Act on Special Cases concerning the Punishment of Sexual Crimes.
3. What Is Daeryun's Strategy Regarding Child Sexual Exploitation Material?
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.
