Difficult to Prosecute Under Current Law Despite 200,000 Views
No Punishment Provisions for Defamation of the Deceased
Regulatory Gaps Unlike Deepfake Sex Crimes
Urgent Need for Legal Reforms in the Age of AI
As the March 1st Independence Movement Day approaches, controversy is growing over the spread of generative artificial intelligence (AI) videos that ridicule independence activists. However, under the current legal system, it appears to be difficult to criminally prosecute the creators of such content.
On February 27, Seo Kyung-duk, a professor at Sungshin Women's University, stated via social networking services (SNS) that "a mocking caption belittling the appearance was attached to a photo of Kim Gu posted on TikTok."
In contrast, he pointed out that a photo of Lee Wan-yong, a prominent pro-Japanese figure, was posted along with expressions of praise. Professor Seo stated, "It is regrettable that such a situation has occurred right before Independence Movement Day," and added, "According to experts, it is difficult to impose punishments under current laws." He went on to emphasize, "It is important for netizens to actively report these videos to prevent their exposure."
In addition, numerous posts mocking activist Yu Gwan-sun have also been identified. Recently, numerous generative AI videos mocking activist Yu Gwan-sun have been posted on the social media platform TikTok. These videos feature scenarios in which Yu Gwan-sun expresses affection for the Japanese flag or engages in unrealistic behavior, and some of them are reported to have surpassed 200,000 views.
The police have become aware of these posts, but it is understood that they have not yet launched a preliminary investigation (an inquiry prior to a formal investigation). A preliminary investigation is a procedure to determine whether to proceed to a full investigation. The biggest obstacle is the lack of legal provisions for punishment under current law. First, under the Criminal Act of the Republic of Korea, defamation of the deceased is addressed in Article 308, which stipulates imprisonment or confinement for up to two years, or a fine of up to 5 million won, only in cases where false facts are specified. However, legal experts interpret that in cases like this, where there is only crude mockery or caricature without specifying concrete facts, it is difficult to meet the requirements for this charge.
Recently, numerous generative AI videos mocking activist Yu Gwan-sun have been posted on social media platform TikTok. TikTok
Additionally, the crime of insult (Article 311 of the Criminal Act) stipulates imprisonment or confinement of up to one year, or a fine of up to 2 million won for openly insulting a person, but the law is limited to 'living individuals' and does not apply to the deceased. Similarly, under the Act on Promotion of Information and Communications Network Utilization and Information Protection, defamation provisions are also difficult to apply to mere mockery of the deceased.
As a result, at present, the only immediate remedies are for the Korea Communications Standards Commission to request deletion of the videos from platform operators and to rely on the platforms’ own self-regulation. Meanwhile, discussions regarding the misuse of historical figures' images have already taken place overseas. In October last year, OpenAI completely blocked the generation of videos using the image of Dr. Martin Luther King Jr.
This was due to the spread of insulting content and the resulting harm to bereaved families. In contrast, in Korea, legislative efforts have mainly focused on preventing deepfake sex crimes. While an amendment establishing the crime of insulting the deceased has been proposed, specific legislative discussions related to the misuse of generative AI remain at an early stage, suggesting that related controversies are likely to continue in the future.
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