Supreme Court: Recording Nude Video Call Partner Not Camera Use Filming Crime Under Sexual Violence Punishment Act

The Supreme Court has ruled that recording and saving the other party's nudity during a video call on a mobile phone cannot be punished under the Sexual Violence Punishment Act as a crime of filming using a camera, etc.

Previously, the Supreme Court stated that the term "filming a person's body" as stipulated in the relevant punishment clause refers to directly filming the person's body itself, and does not apply to filming videos containing images of a person's body. Accordingly, recording the call screen on a mobile phone during a video call is not considered directly filming a person's body, and thus is not subject to punishment under the Sexual Violence Punishment Act.

Supreme Court, Seocho-gu, Seoul.

According to the legal community on the 3rd, the Supreme Court's 3rd Division (Presiding Justice Eom Sang-pil) overturned the original ruling that sentenced Mr. A to four years in prison in the appeal trial for charges including violation of the Sexual Violence Punishment Act (filming using a camera, distribution, and threatening with filmed materials), assault, threats, special property damage, violation of the Stalking Punishment Act, and attempted trespassing, and remanded the case to the Suwon High Court.

Article 14, Paragraph 1 of the Sexual Violence Punishment Act (Filming Using a Camera, etc.) states, "A person who uses a camera or other mechanical device with similar functions to film a person's body that may arouse sexual desire or shame against the will of the filming target shall be punished by imprisonment for up to seven years or a fine of up to 50 million won."

The court cited a 2013 Supreme Court precedent, stating, "Since Article 14, Paragraph 1 of the Sexual Violence Punishment Act defines the subject of filming as 'a person's body,' only acts that directly film the person's body itself correspond to the 'act of filming a person's body' stipulated in the provision, and acts of filming videos containing images of a person's body do not fall under this."

It continued, "According to this legal principle, among the facts of this case, the defendant's act of recording and saving the victim's nude showering scene during a video call using the mobile phone's recording function targeted the body image video received on the defendant's mobile phone, not the victim's body itself, and therefore cannot be considered an 'act of filming a person's body' as defined by the provision."

Furthermore, the court stated, "Nevertheless, the original court upheld the first trial's guilty verdict on this part of the charges. This original ruling contains an error in the legal interpretation of Article 14, Paragraph 1 of the Sexual Violence Punishment Act that affected the judgment. Therefore, the part of the original ruling concerning the violation of the Sexual Violence Punishment Act due to filming the victim's body (filming using a camera, distribution, etc.) must be overturned and remanded."

Mr. A was indicted on charges of recording the victim during a shower via video call in May 2023 and posting the content on TikTok and Instagram.

Mr. A was in a relationship with the victim but had broken up, and he was also charged with multiple offenses including threats, special property damage, and violation of the Stalking Punishment Act against her.

The first trial court found Mr. A guilty of camera filming crimes and sentenced him to four years in prison, ordering a seven-year employment ban at institutions related to children, adolescents, and persons with disabilities.

The court judged, "The defendant publicly displayed filmed or reproduced materials that were taken against the will of the filming target, depicting a person's body that could arouse sexual desire or shame."

The second trial court's judgment was the same.

Mr. A claimed factual errors regarding the part of the charges recognized as guilty by the first trial court, specifically the posting of three captured photos of the victim showering nude from illegally filmed videos on Instagram after creating an account on July 6, 2023, suggesting that his spouse B, who had been in conflict with the victim, might have posted the materials.

However, the court stated, "The original court (first trial) recognized based on properly adopted and examined evidence the following circumstances: ▲ In May 2023, when Mr. A was dating the victim, he recorded and possessed the victim showering via video call ▲ From around June 2023, when their relationship deteriorated, Mr. A began threatening the victim by implying he could distribute the video ▲ Around June 27, 2023, he posted a captured nude photo of the victim from the video on the TikTok application ▲ The victim testified in the first trial court that Mr. A had an Instagram account and she had seen him using Instagram ▲ Mr. A claimed that his spouse B, residing in Kyrgyzstan, might have posted the victim's photos on Instagram, but no evidence was found in their conversations indicating B posted the photos ▲ Rather, around 3 p.m. on July 6, 2023, B sent Mr. A a screenshot of the photos posted on Instagram asking, 'Is this the person you live with?' suggesting B only saw the Instagram posts after Mr. A had distributed the photos and confirmed with him whether the person in the photos was the victim ▲ Most importantly, on July 6, 2023, before the conversation with B, the defendant sent the victim's nude photos to the victim's son along with a screenshot of the Instagram post, indicating the photos had already been distributed via Instagram before the conversation with B." Based on these, the court concluded that it was sufficiently proven that the defendant posted the victim's nude photos that could arouse sexual desire or shame on the Instagram application.

It added, "The original court's judgment is reasonable and acceptable, and there is no factual error as claimed by the defendant."

However, the Supreme Court's judgment differed.

The Supreme Court acquitted Mr. A of the charge of violating Article 14, Paragraph 1 of the Sexual Violence Punishment Act (filming using a camera, distribution) among the charges found guilty by the first and second trial courts and overturned the original ruling.

Accordingly, in the retrial, Mr. A is expected to be acquitted of this part and have his sentence reconsidered.