The meaning of “cene file” of obscene videos and whether the said file constitutes “information with the content distributed or displayed openly through an information and communications network” that prohibits the distribution of obscene videos through an information and communications network under Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (affirmative)

P2P file for obscene videos is a file created by using a siren program (hereinafter referred to as a “sene program”) to share the obscene videos through a given file sharing protocol (hereinafter referred to as a “p2P program”).

A siren file of obscene videos contains a file containing meta data, such as the name, size, and unique piracy value, of obscene videos. The cephere data plays the same role as a color figure to find out the given obscene videos to be transmitted from a large number of cep service users through sirens. If the cephere file is acquired and carried out in the cephere program, the cephere file can be automatically transmitted from other cep users of the obscenity. As such, the cephere file of obscene videos is an information generated to share obscene videos, and necessary information for receiving the given obscenity videos subject to sharing via the cephere.

As above, comprehensively taking account of the role and function of a siren file in a P2P file sharing protocol, and the intent of the actor who posts the siren file on the website, etc. to share obscene videos, the given obscene video files constitute “information with a content distributed or displayed openly in the course of distributing or openly displaying obscene videos through an information and communications network” prohibited by Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”).

Therefore, the act of posting a siren file of obscene videos on a website, etc. to have it downloaded to an unspecified or large number of people free of charge, or the act of creating a situation in which the given obscene videos can be immediately connected with the given obscene videos without any particular restriction by using the given siren file is subject to punishment under Article 74(1)2 of the Information and Communications Network Act, resulting in the same result as “the act of distributing or openly displaying obscene videos in violation of Article 44-7(1)1 of the same Act.” Therefore, the above act satisfies the constituent elements of distributing or openly displaying obscene videos in light of the whole.

Articles 44-7 (1) 1 and 74 (1) 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Defendant

Defendant

Attorney Yang Dong-soo

Jeonju District Court Decision 2019No194 decided April 3, 2019

The appeal is dismissed.

The grounds of appeal are examined.

1. Summary and key issues of the facts charged

A. The summary of the facts charged in this case is as follows: (a) from the end of November 2017 to September 7, 2018, the Defendant posted a total of 8,402 obscene videos on the five bulletin boards [5,137 obscene videos, including sexual intercourse images between men and women (boardboard No. 1 omitted), (board Board No. 1 omitted), (board Board No. 2 omitted), (board Board No. 3 omitted), (board Board No. 4 omitted), and (board Board No. 5 omitted omitted); and (b) displayed a total of 8,402 obscene videos so that many and unspecified visitors to the above site can download them with the downloaded, thereby distributing or openly displaying obscene videos via an information and communications network.

B. In regard to this, the Defendant asserts that his posting of obscenity files are obscene videos. To this end, the Defendant’s posting of obscenity files do not constitute “an act of distributing or openly displaying obscene videos” under Article 74(1)2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act,” since the file containing the file’s name or size necessary for downloading the given obscenity videos, and the file does not constitute obscene videos.

C. The key issue of the instant case is whether the Defendant’s act constitutes “an act of distributing or openly displaying obscene images” under Article 74(1)2 of the Information and Communications Network Act.

2. Determination

A. Article 44-7(1)1 of the Information and Communications Network Act provides that no person shall distribute information with obscene content distributed, sold, rented, or displayed openly in the form of code, words, sound, image, or motion picture through an information and communications network. Article 74(1)2 of the Information and Communications Network Act provides that a person who distributes, sells, lends, or openly displays obscene codes, words, sound, images, or motion pictures in violation of Article 44-7(1)1 of the same Act shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won.

B. A siren file of obscene videos is a file created by using a siren clorate program (hereinafter “pene program”) to share the obscene videos via a file sharing protocol in P2P method.

A siren file of obscene videos contains a file containing meta data, such as the name, size, and unique piracy value, of obscene videos. The cephere data plays the same role as a color figure to find out the given obscene videos to be transmitted from a large number of cep service users through sirens. If the cephere file is acquired and carried out in the cephere program, the cephere file can be automatically transmitted from other cep users of the obscenity. As such, the cephere file of obscene videos is an information generated to share obscene videos, and necessary information for receiving the given obscenity videos subject to sharing via the cephere.

As above, comprehensively taking account of the role and function of a siren file in a P2P file sharing protocol, and the intent of the actor who posts the siren file on the website, etc. to share obscene videos, the given obscene video files constitute “information with a content distributed or displayed openly in the form of obscene videos” prohibited by Article 44-7(1)1 of the Information and Communications Network Act, which is an information generated to share obscene videos, and an information necessary to receive transmission of such obscene videos via a siren, constitutes “information with a content distributed or displayed openly through an information and communications network.”

Therefore, the act of posting a siren file of obscene videos on a website, etc. to have it downloaded to many and unspecified persons free of charge, or the act of creating a situation in which the given obscene videos can be immediately connected with the given obscene videos without any particular restriction by using such a siren file has brought about the same result as “the act of distributing or openly displaying obscene videos in violation of Article 44-7(1)1 of the Information and Communications Network Act”, which is subject to punishment under Article 74(1)2 of the same Act. Therefore, it is reasonable to deem that the above act satisfies the elements of the establishment that distributes or openly exhibit obscene videos in light of the whole.

C. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

1) A siren site written in the facts charged is a website opened and operated by the Defendant to gain advertising profits. The Defendant secured a considerable amount of obscene videos to attract many and unspecified persons visiting the said siren site, and posted 8,402 earth files of obscene videos written in the facts charged on the bulletin board of the said siren site divided into five types of obscene videos.

2) The documentary file of the above obscene videos is a file created to share the given obscene videos secured by the Defendant through a siren, and the merta data contained in the said siren file plays the same role as the colorer to find out the given obscene videos that will be transmitted through a siren. Accordingly, if the said documentary file is carried out in a Saturday program, the said documentary file can be automatically transmitted the given obscene videos.

3) The Defendant did not impose any restrictions on unspecified or many unspecified persons visiting the said siren site for downloading or using the said siren files, and the downloaded was done free of charge.

D. In full view of the foregoing circumstances, the Defendant’s act of posting a siren file of obscene videos to allow an unspecified or large number of people to download them through an information and communications network brings the same result as distributing or openly displaying the given obscene videos through the information and communications network. Therefore, the Defendant’s act can be deemed as a whole to constitute “an act of distributing or openly displaying obscene videos in violation of Article 44-7(1)1 of the Information and Communications Network Act” under Article 74(1)2 of the same Act.

E. In the same purport, the lower court was justifiable to have found the Defendant guilty of violating Article 74(1)2 and Article 44-7(1)1 of the Information and Communications Network Act by distributing or openly displaying obscene images via an information and communications network. In so doing, the lower court did not err by misapprehending the legal doctrine on “a person who distributes or openly displays obscene images” under Article 74(1)2 of the Information and Communications Network Act, or by violating the principle of prohibition of analogical interpretation.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)