The case holding that it is difficult to readily conclude that Defendant B did not exercise the duty of care to prevent the distribution of obscene materials in the course of providing online services solely on the grounds that the Internet service provider’s search for all information existing on the Internet and determined whether obscene materials are obscene, and then demanding users to completely block access to such information cannot be expected in reality due to technical or practical limitations, etc., and if an online service provider took appropriate and considerable measures to prevent the distribution of obscene materials within the scope of technical or real limits, it is difficult to impose the duty of care to prevent the distribution of obscene materials on the Internet, and that the online service provider did not perform the duty of care to prevent the distribution of obscene materials in the course of providing online services, and that it is difficult to readily conclude that Defendant A was not guilty solely on the grounds that the online service provider failed to perform the duty of care to prevent the distribution of obscene materials in the course of operating each site above, and that Defendant A’s act of providing considerable monitoring personnel for the purpose of preventing the distribution of obscene materials is not identical with that of Defendant A’s act of aiding and abetting the distribution of obscene materials.

A. Defendant 2

From August 29, 2017, the Defendant is the representative director of Defendant 1, who operates an Internet web site (name 1 omitted) (name 1 omitted), (name 2 omitted), (name 2 omitted) (name 3 omitted), and (name 3 omitted) (name 3 omitted) (name 3 omitted) (name 3 omitted) in a website.

The Defendant, from December 12, 2015 to October 2, 2018, operated a system to increase the number of its members on the website (name 1 omitted), (name 2 omitted), and (name 3 omitted), and to have its members pay download more than one, so that members can download other materials free of charge according to the download capacity and download them free of charge. The Defendant failed to take appropriate measures, such as facilitating employment of a large quantity of obscene videos distributed among men and women through the above website and facilitating circulation of 100,000,000,000,000,000,000, and 10,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000.

B. Defendant 1 corporation

The defendant is a company that operates an Internet web site (name 1 omitted) (site address 1 omitted), (name 2 omitted), (site address 2 omitted), and (name 3 omitted) (site address 3 omitted).

Defendant 2, a representative director, did not take appropriate measures to prevent distribution as described in the above A. A., at the time and place specified in the above A., and aided and abetted members to distribute or openly display obscene videos through an information and communications network.

2. Determination

Considering the following circumstances that can be recognized by the records of this case, the evidence submitted by the prosecutor alone is insufficient to readily conclude the guilty of the facts charged of this case.

(a) Common circumstances

1) Since the complete blocking of the distribution of obscene materials in online services is almost unlikely in light of the current technical level, and it is extremely inefficient when considering the economic costs and burdens incurred in such blocking, it is difficult to expect the Internet service provider to search for all information existing on the Internet and to completely block users’ access to such information after determining whether it is obscene.

Therefore, due to such technical or practical limitations as above, it is difficult to impose on online service providers the duty of commission to block the dissemination of obscene materials on the Internet in an unconditional and exclusive area. If online service providers have taken appropriate and reasonable measures to block the dissemination of obscene materials within the scope of technical or practical limits, it shall be deemed that the online service provider fulfilled the duty of care necessary to prevent the dissemination of obscene materials in the course of providing online service.

2) The burden of proof for the crime prosecuted in a criminal trial is the prosecutor, and the conviction should be based on the evidence with probative value that makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine it as the interest of the defendant. Thus, in order to find the defendant guilty of the facts charged in this case, it is necessary for the prosecutor to prove that Defendant 2 did not take appropriate and appropriate measures to block the distribution of obscene materials on each site listed in the facts charged (hereinafter "site of this case") within the extent of technical or practical limits, etc.

3) Meanwhile, insofar as it is difficult to impose a duty of commission on an online service provider to prevent the distribution of obscene materials on the Internet without conditions and exclusive area, it is difficult to readily conclude that Defendant 2 failed to perform the duty of care necessary to prevent the distribution of obscene materials in the course of operating each site of this case, solely on the fact that the instant obscene materials have been put on the site of this case.

4) In the instant case, the prosecutor cited that Defendant 2 did not employ adequate human resources and did not perform prevention work, as a detailed attitude with regard to Defendant 2’s failure to take appropriate measures to block the distribution of obscene materials of this case.

However, the evidence presented by the prosecutor alone is insufficient to assess that the act of aiding and abetting the distribution of obscene materials of this case is identical to the act of aiding and abetting and abetting the distribution of obscene materials, on a normative basis, since the placement of human resources by Defendant 1 Company (hereinafter “Defendant Company”) is not sufficient. The reasons are as follows.

The case holding that it is difficult to find out that the posting of 100% and the number of persons to the extent to be able to be verified and deleted without any exception on each site of this case as an exclusive monitoring personnel in light of the reality of the defendant company is similar to the fact that it is impossible in fact in light of the reality of the defendant company, and it is difficult to find out that the monitoring personnel of the size is assigned in the same industry.

In light of such realistic limitations, the Enforcement Decree of the Telecommunications Business Act [Attachment 3] provides that “at least two employees exclusively in charge of monitoring the distribution of illegal information, harmful information, and illegal works for 24 hours and protecting users shall be assigned, and only one exclusive staff member per 4,000 cases shall be additionally assigned to the daily average download or sharing account for 4,000 hours shall be designated as the registration requirements for the web liver company as in the instant case. However, each site of this case seems to have been temporarily equipped with the above requirements except for several months, such as the width of the number of off-site (Evidence 16).

The placement of personnel in charge of monitoring obscenity is appropriate and appropriate to block the distribution of obscene materials by online service providers and to prevent considerable parts of the distribution of obscene materials by taking into account the following various means (i.e., the Defendant Company taking various measures to prevent the distribution of obscene materials, as seen below).

㉣ 피고인 2가 모니터링 전담요원을 위 등록요건의 기준을 넘어서서 어느 정도 추가로 고용하였다고 하더라도 이 사건 음란물의 업로드 및 유포를 사전에 100% 방지할 수 있었다고 단정하기 어려운 점.

5) In light of the fact that the Defendant Company entered into a covering contract on each site of this case with Pyeongtaek Non-Indicted 1 Company, and accordingly, the Defendant Company’s search-based pening, sea-based pening, sanctions against hedges, etc. (Evidence No. 12, 15, 16) was deleted or blocked by technical measures, including the placement of monitoring personnel, etc., the Defendant Company may be deemed to have taken considerable measures to prevent the dissemination of obscenity.

B. Special circumstances concerning each video recorded in a list of crimes:

1) Four video images listed in the list of crimes attached to the indictment are recorded as the date and time of the search on September 5, 2017; the date and time of September 6, 2017; and October 11, 2017, which are attached to the indictment. Each video registration date appears to be from January 11, 2017 to September 28, 2017 (for defense counsel’s written opinion as of May 9, 2019, the date and time of actual registration of video images listed in the above No. 84 appears to be September 15, 2017).

Nonindicted 2 filed a complaint against the Defendants on the ground that 84 of his sexually related video images were set up on each site of this case.

2) However, there is no clear data to verify the download numbers of each of the above video images, and there is no fact that a considerable number of the above groups have been converted into points. Although there are some of the groups that have been converted into points, most of them appears to have completed the points conversion before the date on which Defendant 2 was appointed as the representative director, there is room for not having any relation with the pertinent points conversion and Defendant 2 (the pertinent investigation record 501-502 pages).

3) Each video recorded in the list of crimes as above was deleted on September 5, 2017 through September 6, 2017, and the remainder was deleted until October 2, 2017.

However, Defendant 2 was appointed as the representative director of Defendant Company on August 29, 2017. The video images registered after Defendant 2’s appointment as the representative director seems to have been merely 37 out of 84, and around 29 were deleted due to sanctions taken by Defendant Company on September 6, 2017, where about 37 and about 29 days have not yet elapsed from the above appointment date. Only the remaining seven were deleted in sequence from September 14, 2017 to October 2, 2017 (Evidence 1710, No. 4 of the investigation record). In particular, some video images were deleted since 24 hours have not yet passed since the said appointment date.

Considering the above circumstances, the Defendant Company may be deemed to have taken the minimum measures to prevent the spread of each video recorded in the crime sight table 1.

C. Special circumstances concerning each video recorded in Table 2 of Crime List

1) The number of 206,246 video images as stated in the list of crimes added by an application for changes in indictment issued as of April 30, 2019 are the period from December 12, 2015 to October 2, 2018.

Non-Indicted 2 filed a complaint with respect to his sexually related video that was circulated on the web site, etc., and the investigative agency confirmed that the above sexually related video was up to six times on each site of this case, and determined that 206,245 posts posted to him/her for his/her own business through a separate internal investigation process were illegal obscenity (No. 232 pages of investigation records). The above 16 persons will be subject to criminal punishment after the fact (the pertinent investigation records No. 417 pages).

2) However, the investigative agency does not actually confirm the existence of each of the above videos, and it is not clear whether the video in question constitutes an actual obscene material or merely a legitimate indecent material as a domestic affiliated adult (the title of the video in itself appears to be a domestic affiliated adult).

3) In addition, the evidence submitted by the prosecutor alone is difficult to find out data that can clearly verify the downloaded number of the given video and the timing of sanctions by the Defendant company. Therefore, it is difficult to eliminate the possibility that the Defendant company would have taken sanctions within a short period from the time when a considerable number of the above videos were put on business.

In particular, according to the statement in the list 2 of crime daybook 2, a part of the video is included in the number of sales, most of the video is not recorded in the number of sales, and furthermore, the number of sales is not specified in the video (in particular, Nonindicted 3, Nonindicted 4, and Nonindicted 5) in which the number of sales is recorded. Six of the sexually related video of Nonindicted 2 appears to have been deleted immediately upon the request of the cyber sexual violence support center (the investigation record concerned is about 65 pages).

Furthermore, Defendant 2 was appointed as the representative director of Defendant Company on August 29, 2017, and the time of registration of some video images (including Nonparty 3, Nonindicted 2, Nonindicted 5, and Nonindicted 2,687) of Defendant 2’s list of crimes was before August 29, 2017, and if the video was deleted before Defendant 2’s appointment, the crime related to the video is unlikely to be related to Defendant 2.

(d) Special circumstances concerning each video recorded in a list of crimes:

1) The number of video images 380,168 added by an application for change of indictment issued on October 18, 2019 is 380,168, as stated in the list of crimes, which was added by an application for change of indictment issued on October 18, 2019. The date of documentary evidence is from October 3, 2018 to May 3, 2019.

On the basis of 1,651 video images (from December 31, 2018 to January 31, 2019) provided by the Korea Communications Commission pursuant to the Web Hadridel concentration Control Plan (welved web Had and Helver, etc.) (the investigation records 2,20 pages) the police conducted internal investigation against the Defendants (the investigation records 2,20 pages). The police, through search and seizure on the server, identified 36 persons from 80 IDs to 190,769 (from August 5, 2015 to 19, May 31, 2019), specified them as illegal obscene contents (the investigation records 63 pages) and received an application for the change of indictment from the Korea Communications Commission (the investigation records 10,000 pages 1,000 to 31,000). The police, including 39,000 video content from 18,1988.168

2) With respect to the above video 1,651, which was provided by the Korea Communications Commission, the evidence alone submitted by the Prosecutor alone to verify only the cans and photographs of each video and the data on the business route thereof (the pertinent investigation records 21-78 pages), and it is difficult to find separate data to verify the download numbers of each video, and the profits received by the business partners.

Rather, according to the evidence (Evidence No. 17) submitted by the Defendants, there are not a lot of video images, the number of which is only zero, and a lot of video images were subject to sanctions within a short period from the registration date.

3) As to the video images other than 1,651 video images provided by the Korea Communications Commission among 380,168 video images as stated in the list of the crimes added by an application for changes to indictment issued on October 18, 2019, the evidence submitted by the prosecutor alone is merely verified, and it is difficult to find data to clearly confirm the title and business route (454 pages of investigation records) of each video, separately, whether the video is actually obscene and the multiple number of the video images in question.

Rather, the investigative agency appears to have regarded each of the above videos as an illegal obscene material only by its title. In fact, some of the videos appear to be hard to distinguish whether they are illegal obscene material or legitimate indecent material as an adult for domestic alliance, and it is not clear whether they are viewed as a business (at least dynamic image without the capacity to include it), and the list of each of the above videos seems to lack data to clearly ascertain whether or not they were actually engaged in blocking measures against each of the above videos because the list of the videos is merely the detailed contents of the above businesses, and it seems that there is insufficient data to ascertain whether or not they were actually engaged in blocking measures against each of the above videos (or, a number of video images published through Arabic subscribed in Nonindicted 6’s name are verified as 0 (the pertinent investigation record 353-362 pages).)

3. Conclusion

Therefore, the facts charged against the Defendants constitute a case where there is no proof of facts constituting a crime, and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Park Jin-han