Development in the Definition of Child Pornography
in the Republic of Korea
1. Introduction
Open Net is a South Korean civil society organization dedicated to defending Internet freedom anddigital rights. We also hold the Special Consultative Status, under the name ‘Open Net Incorporated
Association,’ to the United Nations Economic and Social Council (ECOSOC).
We respect and support all UN’s efforts to protect children from abuse and sexual exploitation,
especially regarding the drafting of the Guidelines on the implementation of the Optional Protocol tothe Convention on the Rights of the Child on the sale of children, child prostitution and childpornography (hereinafter the “Guidelines”) and its consideration of the digital environment today.
There are many aspects of the Guidelines that should be implemented as soon as possible. However,some aspects of the Guidelines, especially para. 63 regarding child pornography, or “child sexual abusematerial (CSAM),” require some consideration.
We believe that CSAM involving a real or existing child should be eradicated, and the production,
distribution, or possession of such CSAM must be severely punished. However, our experience hastaught us about the pitfalls of punishing CSAM involving non-existing children or persons appearing
to be children such as drawings, cartoons, anime, and virtual representations the same as the CSAM
involving an existing child.

2. Definition of “Child Pornography” under the Act on the Protection of Children andYouth against Sex Offenses of the Republic of Korea
The Act on the Protection of Children and Youth against Sex Offenses, or the Protection of Children
against Sex Offenses Act (hereinafter the “PCSOA”) currently defines “Child Pornography” as1:
the depiction of children or youth, or persons or representations that can be obviously perceived as
children or youth, doing 1) sexual intercourse; 2) Pseudo-sexual intercourse using parts of the body,such as the mouth and anus, or implements; 3) Contacting or exposing all or part of the body, whichcauses sexual humiliation or repugnance of ordinary people; 4) masturbation; or 5) engaging in any
other sexual act, in the form of a film, video, game software, or picture, image, etc. displayed oncomputers, or other communications media.
Production, sale, distribution, exhibition, and possession of child pornography are all heavily punishedin Korea, the sentence for production being the most severe (indefinite term or more than five years ofimprisonment), and the sentence for possession the least severe (not more than one year ofimprisonment or a fine not exceeding KRW 20 million). 2 Information of “Child Sex Offenders” isdisclosed and notified for 10 to 30 years, and their employment at child-related institutions is restricted
for the maximum of 10 years.3

1PCSOA Article 2 subparagraph 4. http://elaw.klri.re.kr/kor_service/lawView.do?hseq=47277&lang=ENG
PCSOA Article 113PCSOA Article 50 and Article 56
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3. “Increase (?)” of “Child Sex Offenders” by 22 times in 2012
In 2011, in the wake of a series of several highly publicized cases of child rape-and-murders, theNational Assembly revised the PCSOA. The revision also expanded the definition of Child Pornography,“the depiction of children” involved in sexual activities, to include “persons or representations thatcan be perceived as children.” The amendment came into force on March 16, 2012.
The number of people investigated for child-pornography-related charges (Article 8 of the PCSOA)
soared to 2,224 in 2012, a significant increase by more than 22 times from the previous years.
PCSOA Article 8 Violation Charges4
Year

Investigation

Indictment

Non-Indictment

Others

2010

8238

2614

2011

100582321

2012

2,224775

433

940

Although the number of sexual offenses against children has been on the increase, the main reason forthe sharp increase was mainly due to the expansion of the definition of child pornography in 2011.
Much Japanese pornographic material consumed in South Korea features adult actors/actresses inschool uniforms or cartoon characters look like children. Then in 2012, 2,224 people, mostly in theirearly 20s, were rounded up and investigated as “child sex offenders” for uploading or possessing suchmaterial. Many of those actually indicted received guilty verdicts, which are followed by the registration
as a “child sex offender,” disclosure of personal information, and employment restrictions, just likethose offenders who coaxed real children into having sex in front of the cameras but definitely unlike
the distributors of ordinary obscene material in which animation characters or live adult characters “lookolder than 19.”
Korean law treating imaginary sex with an imaginary, non-existent child the same as sex with a realchild has created interesting results. One lawyer in the trial for animation characters argued in court:“So, if the law punishes a material for its imaginary sexual character’s age, how will we measure theage of, say, personified animals, extraterrestrials, or for that matter vampires whose average age in thestories seem to exceed 100 years?” A judge hearing the argument changed the count from childpornography to obscenity, which carries only one year imprisonment at most.
It is notable that when the number of people investigated increased greatly, the indictment rate fell from
58% in 2011 to 35% in 2012. And about half of the investigation were classified as “others.” This meansthat many of the investigations were on cases that didn’t involve real child pornography. The biggest
difference between the punishment of child pornography from obscene material is that just thepossession is punished. And as the law also punishes exposure of body parts, there was a case where aperson was punished for downloading an anime rated R-15 in Japan that showed no sexual intercourse.

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https://opennet.or.kr/trend/1344 (in Korean)

2/4Moreover, the police officers spend a lot more time in front of computers because it was much easierfor them to crack down ignorant young people who uploaded or downloaded Japanese cartoons orschool uniform porns that are prevalent on the Internet than pursuing more serious criminals like theproducers of CSAM abusing real children or child molesters. One female child rape victim cried on
television: “In my experience, porns don’t make people commit child rapes. People natured andnurtured to do so will do so regardless. Stop web-surfing and get out there, catch the real criminals.”
As the same provision being used against the works showing real children and virtual children, thepolice officers greedy for their promotion points will take their patrolling time out for cyber-patrolling,
actually reducing the police work on real abuses.

4. Revision of the PCSOA to Narrow Down the Definition of Child Pornography
Realizing that the expanded definition of child pornography in 2011 was too broad, the National
Assembly tried to limit the definition to “a depiction of persons or representations that can beobviously perceived as children” and punishment of possession to “knowing” possession later in 2012.5
However, the revised definition was not clear enough to prevent people from being indicted for school
uniform porns, cartoons or animes.
In the end, it was at the hands of criminal court judges to clarify the definition. Courts started to findchild pornography involving non-existing children not guilty for child sex offenses. Then in 2013, acouple of judges filed requests for constitutional review of the child pornography law for a school
uniform porn case and an anime case. In addition to judges requesting the indictments to replace a childpornography charge with an obscenity charge, many prosecutors closed their cases on “deferral ofindictment”, which actually means that the person is permanently protected from prosecution unless heor she comes back to the prosecutors’ office on another crime. Open Net filed a constitutional complaint
against the child pornography law on behalf of a person received a deferral of indictment decision in2013 for an anime. Then in 2014, the Supreme Court found that school uniform porns are not coveredby the definition of child pornography under the PCSOA, and a trial court acquitted an anime case.
In June 2015, the Constitutional Court found the child pornography law constitutional by five to four.
Four dissenting Justices agreed with Open Net’s view that the definition, “persons or representations
that can be perceived as children,” was in violation of the principle of clarity. And five majority Justices
were also of the opinion that the definition only includes persons or representations that can beperceived as an existing child, and as such, the law is not in violation of the Constitution.

5. Conclusion
To repeat, we believe that CSAM involving a real or existing child should be eradicated, and the abusers
and exploiters severely punished. However, the goal of child pornography law should focus onprotecting real children, not fictional cartoon characters or adults with youthful looks. After theexpansion of the definition of child pornography to include CSAM of non-existing children, muchresource has been wasted to bust young people, sometimes children themselves, who fancied cartoonsand anime, and label them as “child sex offenders.” We believe that the resource should be used more
effectively in the prevention and eradication of CSAM with real victims.

5The amendment came into force on June 19, 2013.

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If you have any questions or comments regarding this document, please contact:
Kelly Kim, General Counsel, Open Net Korea
Emails: kkim@opennet.or.kr, 8kkim8@gmail.com
Phone: +82-2-581-1643
Fax: +82-2-581-1642

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