As deepfake crimes surge, court precedents are piling up on sexually explicit photos and videos synthesized with artificial intelligence (AI). Against this backdrop, the National Assembly is discussing a plan to sanction sexually explicit videos made with non-existent virtual people under the Act on Special Cases Concerning the Punishment of Sexual Crimes.
Courts are seeking a baseline for which charges to apply when punishing the creation of sexual composites with AI, and some note that if the National Assembly expands punishable targets without sufficient debate, it could cause confusion.
◇ Broadcasting, media and communications review body sought deletion of 15,000 deepfake sex crime videos in the first half
Harm from AI-generated composites is significant. In the first half of this year, the Korea Communications Standards Commission (KCSC) demanded that internet platform operators delete or block access to 15,179 deepfake sex crime videos. They made up 44.8% of all digital sex crime information. Many involved combining the faces of Korea celebrities, including popular idols, with pornographic videos, and there were composites of ordinary people as well.
Three laws punish producing and distributing sexually explicit videos using AI: ▲ Act on the Protection of Children and Youth against Sex Offenses ▲ Act on Special Cases Concerning the Punishment of Sexual Crimes ▲ Act on Promotion of Information and Communications Network Utilization and Information Protection.
If a sexually explicit video is distributed against the will of the person involved, or if a deepfake sex crime video of a real person is distributed using AI, the Act on Special Cases Concerning the Punishment of Sexual Crimes applies. If the victim or subject is a minor under 19, penalties are increased under the Act on the Protection of Children and Youth against Sex Offenses. Simple distribution of obscene materials is governed by the Act on Promotion of Information and Communications Network Utilization and Information Protection.
◇ Case of combining a child or teen's face with an adult woman's body sees split rulings in first and second trials
Courts are divided on which of the three laws to apply in different situations.
A took photos of B, a junior in middle school, from Instagram and created illegal composites by combining them with nude or sexual photos of other women. This conduct was charged under the Act on the Protection of Children and Youth against Sex Offenses, and another crime targeting a middle school classmate was charged under the Act on Special Cases Concerning the Punishment of Sexual Crimes.
In the first trial, A was sentenced to three years in prison, suspended for five years. The second trial reduced the sentence to two years and six months in prison, suspended for three years. Unlike the first trial, it did not convict on the charge under the Act on the Protection of Children and Youth against Sex Offenses.
The appellate court found that although the victim was a child or teen, the unidentified woman's body used in the composite did not appear to be that of a child or teen based on her development. Instead, it convicted under the Act on Special Cases Concerning the Punishment of Sexual Crimes, which the prosecutor had listed in the alternative.
In Aug. last year, the Supreme Court finalized the ruling, finding that the lower court did not misunderstand the legal principles of the Act on the Protection of Children and Youth against Sex Offenses.
◇ Not guilty if it cannot be shown the victim in the distributed sexual photo is real
Whether the victim in an AI composite is a real person is one of the criteria for guilt. The Act on Special Cases Concerning the Punishment of Sexual Crimes provides that editing, synthesizing, or processing recordings, videos, or audio of a person's face, body, or voice into a form that arouses sexual desire or shame against the subject's will is punishable by up to seven years in prison or a fine of up to 50 million won. If the person does not exist in the real world, they cannot express opposition, so punishment is not possible.
In July last year, the Goyang branch of the Uijeongbu District Court acquitted C, a man indicted for violating the Act on Special Cases Concerning the Punishment of Sexual Crimes (distribution of false videos, etc.) by sending photos on a Telegram channel that combined a woman's face with a nude body.
The court held that for the crime of distributing false videos under the Act on Special Cases Concerning the Punishment of Sexual Crimes to be established, the subject of the photo must be a real person capable of objecting to the composite. In this case, it found that the criminal facts were not proven because there were no materials to verify the original photos, their source, or the method of composition.
◇ Bill to punish "virtual person pornography" begins review 10 months after introduction
In this situation, Heo Yeong, a lawmaker from the Democratic Party of Korea, introduced an amendment to the Act on Special Cases Concerning the Punishment of Sexual Crimes in Sept. last year as the lead sponsor. The amendment was placed on the agenda of The National Assembly's Legislation and Judiciary Committee on the 27th of last month and entered review.
The amendment includes as punishable "expressions made using AI of virtual persons that could be perceived as real people." Producing or distributing such videos would be punishable by up to seven years in prison or a fine of up to 50 million won, and possessing, storing, or viewing such photos or videos would be punishable by up to three years in prison or a fine of up to 30 million won.
In the bill's statement of purpose, Heo said, "AI technology is being misused to indiscriminately produce and distribute false videos that cause sexual shame or disgust," adding, "By creating a provision that punishes sexually explicit videos generated by AI regardless of whether the person is real, we are addressing a legislative gap." If the bill passes the National Assembly, C would be subject to punishment.
However, some criticize equating photos or videos featuring virtual people with cases where real individuals are harmed. Moon Hye-jeong, spokesperson for the Korean Women Lawyers Association, said, "The reason deepfake composites can be punished is that images or videos are created against the will of actual victims," and added, "To punish virtual people where there is no victim, more discussion is needed on the targets and scope of punishment."
The fact that the level of punishment is the same as when a real person is harmed is also cited as a problem. Kim Yeong-mi, an attorney at Soongin, said, "On the grounds of protecting sexual morality, criminally punishing not only the production of AI photos and videos using virtual people, but also possession and viewing, could excessively restrict individual freedom."
The National Court Administration, under the Supreme Court, commented on the bill, saying, "Distributing obscene photos or videos violates the Act on Promotion of Information and Communications Network Utilization and Information Protection and can be punishable regardless of whether the person is real," adding, "As an alternative, we could consider strengthening the penalties under the Act on Promotion of Information and Communications Network Utilization and Information Protection."