Is it Crime in Korea to Record, Save, and Possess a Video Using the Video Call and Recording Function of a Mobile Phone?

The following is a translation from Korean to English of a post on a Naver Blog by Attorney Haenam Jung. Attorney Jung is a retired Korean judge working with IPG Legal who shares interesting issues on his Naver Blog on Korean Law. His blog is in Korean and we shall be sharing some of his posts and reposts on this blog over the next couple of months. The below is a computer translation of the Supreme Court’s Official Summary of the case that was edited by IPG Legal for clarity.

[Korean] Supreme Court Decision 2024do16133, June 5, 2025, Violation of the [Korean] Special Act on the Punishment, etc. of Sexual Crimes (Photographing, Distributing, etc. Using Cameras, etc.), etc. (D) Appeal Dismissed

[A case in which it was questioned whether the act of recording, storing, and possessing video information transmitted using the video call function of a mobile phone using the recording function of the mobile phone constitutes a violation of Article 14, Paragraphs 1 and 4 of the “[Korean] Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes”]

◇1. Whether the “act of photographing a human body” stipulated in Article 14 Paragraph 1 of the “[Korean] Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes” (hereinafter referred to as the “Sexual Violence Punishment Act”) only applies to acts of directly photographing a human body itself (affirmative); 2. Whether a video clip in which one party to a call uses the video call function of a mobile phone to directly project his or her own body onto the mobile phone camera and transmits the image information, and the other party records and saves the image information, corresponds to a “copy” of a photographed material stipulated in the latter half of Article 14 Paragraph 2 of the Sexual Violence Punishment Act (affirmative); and whether the “photographed material, etc. in Paragraph 1 or 2” stipulated in Article 14 Paragraph 4 of the Sexual Violence Punishment Act means “photographed material, etc. that presupposes an act of photographing or distribution, etc. that is subject to punishment under Paragraph 1 or 2” (affirmative)◇

1. Article 14, Paragraph 1 of the Sexual Violence Punishment Act stipulates that “Anyone who takes pictures of another person’s body, which may cause sexual desire or shame, against the subject’s will using a camera or other similar mechanical device shall be punished by imprisonment for not more than 7 years or a fine not exceeding 50 million won.” Since the above provision defines the subject of the picture as a “human body,” only the act of directly taking pictures of the human body itself constitutes an “act of taking pictures of the human body” as stipulated in the above provision (see Supreme Court Decision 2024do10477 dated October 31, 2024, etc.).

2. Article 14, Paragraph 4 of the Sexual Violence Punishment Act (hereinafter referred to as the “provision of this case”) stipulates that “Any person who possesses, purchases, stores, or views (hereinafter referred to as “possession, etc.”) the filming or copies (hereinafter referred to as “filmings, etc.”) of Paragraph 1 or 2 shall be punished by imprisonment for not more than 3 years or a fine not exceeding 30 million won.” This limits the target of possession, etc. to “filmings, etc. of Paragraph 1 or 2.” Article 14, Paragraph 1 of the Act on the Punishment of Sexual Violence punishes the act of “taking pictures of a person’s body that may cause sexual desire or shame against the subject’s will using a camera or other similar mechanical device,” the first half of Paragraph 2 of the same Article punishes the act of “distributing, selling, leasing, providing, or publicly exhibiting or screening (hereinafter referred to as “distribution, etc.”) of the pictures taken pursuant to Paragraph 1,” and the latter half of the same Paragraph punishes the act of “distributing, etc. the pictures taken against the subject’s will at the time of taking the pictures, even if the pictures were not taken against the subject’s will at the time.”

In light of the wording of the first and second halves of Article 14, Paragraph 2 of the Act on the Punishment of Sexual Violence, the legislative intent and purpose, and the disciplinary system, if one party to a video call using the video call function of a mobile phone transmits to the other party video information created by directly projecting his or her own body through the mobile phone camera, the video information is considered to be a video taken of his or her own body voluntarily by the subject at the time of filming, and thus does not fall under the “filming materials pursuant to Paragraph 1 (against the subject’s will)” as defined in the first half of Article 14, Paragraph 2 of the Act on the Punishment of Sexual Violence. However, it may fall under the “filming materials not against the subject’s will (including cases where one’s own body is filmed directly)” as defined in the latter half of the same paragraph . A video recorded and saved by the other party to the video call using the recording function of a mobile phone of the video information transmitted in this manner falls under the “copy” of a video as defined in the latter half of Article 14, Paragraph 2 of the Act on the Punishment of Sexual Violence .

Meanwhile, considering the wording and format of Article 14 of the Act on the Punishment of Sexual Violence, which includes the provision of this case, its legislative intent and protected legal interests, its legislative history, and its systematic interpretation of relevant regulations, it can be seen that the provision of this case is a provision that punishes acts such as possession after filming or distributing illegal sexually filmed materials in order to regulate access to or demand for such materials. Therefore, the “filmed materials, etc. under paragraph 1 or 2” stipulated in the provision of this case means “filmed materials, etc. that are subject to filming or distribution, etc. that are subject to punishment under paragraph 1 or 2,” and it is difficult to see it as meaning filmed materials, etc. that are not subject to such acts.

☞ The defendant was indicted for violating the Sexual Violence Punishment Act (filming using a camera, etc., distributing, etc.) by using the recording function of the cell phone to record, save, and possess the victim showering and getting dressed during a video call with the victim.

☞ The original judgment stated that ① the act of recording a video call , rather than directly filming a person’s body itself, does not correspond to ‘filming’ as defined in Article 14, Paragraph 1 of the Sexual Violence Punishment Act .

② If the defendant recorded and saved the victim showering and getting dressed during a video call with the victim using the recording function of the mobile phone and then possessed the video without distributing it, it was determined that the video did not constitute filmed material that was filmed or distributed pursuant to Article 14, Paragraph 1 or 2 of the Act on the Punishment of Sexual Violence.

☞ The Supreme Court, while establishing the above legal principles, accepted the original verdict and dismissed the appeal.

[(Korean] Supreme Court Decision 2024do16133, June 5, 2025)

[출처] 휴대전화의 영상통화기능을 이용하여 전송된 영상정보를 휴대전화의 녹화기능을 이용하여 녹화․저장․소지한 행위가 처벌되나?(소극)|작성자 sunrisejhn