Supreme Court: Simple Participation in Child and Adolescent Sexual Exploitation Material Chatrooms Does Not Constitute Possession Crime

1st and 2nd Trials "Anytime Access and Possession of Sexual Exploitation Material Possible"
Supreme Court "Did Not Reach Actual Control Such as Downloading"

The Supreme Court has ruled that simply participating in chat rooms containing child and adolescent sexual exploitation materials created by others, without downloading the sexual exploitation videos, cannot be punished under the 'possession of sexual exploitation materials' charge.

The Supreme Court's First Division (Presiding Justice Oh Kyung-mi) overturned the original ruling that sentenced Mr. A to 5 years and 6 months in prison on charges including violation of the Act on the Protection of Children and Juveniles from Sexual Abuse (possession of sexual exploitation materials), and remanded the case to the Chuncheon branch of the Seoul High Court on the 30th.

Supreme Court building.

Mr. A was prosecuted for opening and operating a Telegram chat room from March to June last year, posting videos of child and adolescent sexual exploitation, and distributing sexual exploitation materials by posting channel links in the chat room. The court recognized all charges related to Mr. A opening the chat room and posting videos and links as guilty.

However, the judgments of the first and second trials and the Supreme Court differed regarding Mr. A’s acts of merely accessing seven chat rooms or notice channels created by others without downloading child and adolescent sexual exploitation videos. The issue in the trial was whether simply accessing and participating in chat rooms created by others could be considered possession of sexual exploitation materials. 'Possession' is a legal term meaning to have actual control over an object, which is a broader concept than mere occupancy.

The first and second trials found all of Mr. A’s charges guilty. The first trial sentenced him to 6 years in prison, and the second trial to 5 years and 6 months. Both trials held that maintaining participation status in the Telegram chat rooms, thereby having constant access to photos or videos posted there, effectively meant possessing or owning the sexual exploitation materials.

The first and second trial courts judged, "If one maintains access to the Telegram chat room, they can participate at any time to download child and adolescent sexual exploitation materials, and it can be evaluated that the defendant could easily check the content of photos and videos posted in the chat rooms they participated in, access the sexual exploitation materials at any time, store them, and thus control them."

On the other hand, the Supreme Court judged that simply participating in channels created by others does not constitute possession of sexual exploitation materials. The court stated, "Although the defendant accessed seven channels and chat rooms where sexual exploitation materials were posted, he did not actually control or own the sexual exploitation materials, such as by forwarding them to his own channels or downloading them to his phone or computer," and added, "Such a level of chat room participation cannot be regarded as possession of child and adolescent sexual exploitation materials."