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As the video points out, there are growing numbers of cases in which people come under investigation after posting videos they filmed themselves on overseas adult platforms such as OnlyFans. It is easy to think that an overseas site has nothing to do with Korean law, or that there is no problem in filming one's own body, but if the video was posted and income was earned in Korea, Korean criminal law may apply.

This article sets out, in order, the basis on which Korean law applies to videos posted on overseas platforms, what kind of video becomes 'obscene material' subject to punishment, why the consent of anyone else who appears in it matters, and what changes when income has been earned.

[Contents]

1. Korean Criminal Law Applies Even to Overseas Sites

2. Consensual or Self-Filmed Videos Can Still Be Obscene

3. Far Heavier Penalties If a Co-Performer Did Not Consent

4. If You Earned Money, Sentencing and Confiscation Both Come Into Play

5. What to Check First If You Are Under Investigation

Korean Criminal Law Applies Even to Overseas Sites

The Criminal Act (형법) applies to Korean nationals and foreigners who commit crimes within the territory of the Republic of Korea (Article 2), and also to Korean nationals who commit crimes outside its territory (Article 3). These principles apply equally to crimes defined in other statutes, such as the Information and Communications Network Act (정보통신망법) (Article 8).

If a video was filmed and uploaded in Korea, that act took place within the territory of the Republic of Korea. The mere fact that the platform operator is a foreign company and its servers are located abroad does not exempt the act from Korean law. Even if the video was posted while staying abroad, Korean law applies to a Korean national under Article 3.

Consensual or Self-Filmed Videos Can Still Be Obscene

The Information and Communications Network Act prohibits anyone from circulating, through an information and communications network, information that distributes, sells or rents, or openly displays, obscene codes, words, sounds, images or videos (Article 44-7(1)1), and punishes violators with imprisonment of up to one year or a fine of up to KRW 10 million (Article 74(1)2).

This provision does not ask who filmed the video or whether there was consent to filming. What matters is whether the posted video is 'obscene.' Whether it is a video you filmed yourself, a video filmed together with the consent of those involved, or a video of your own naked body, the provision may apply if its content is obscene.

The Supreme Court has held that 'obscene' means something that, by social norms, stimulates the sexual desire of ordinary people, arouses sexual excitement, offends a normal sense of sexual shame and runs counter to the concept of sexual morality. Viewing the material as a whole, it refers to material that goes beyond merely being vulgar or giving an impression of indecency, explicitly depicting or portraying sexual parts or acts in a blatant manner so as to seriously damage or distort human dignity and worth, appealing wholly or predominantly to sexual interest alone and having no literary, artistic or similar value; and this must be judged objectively from the standpoint of the average member of society, not by the subjective intent of the maker (Supreme Court Decision 2006Do3558, March 13, 2008, concerning the corresponding provision of the former Information and Communications Network Act).

Not everything with sexual content is obscene material. However, a video that explicitly exposes sexual parts or acts may meet this standard regardless of how it came to be filmed.

Far Heavier Penalties If a Co-Performer Did Not Consent

For a video filmed with another person, consent to filming and consent to uploading must be considered separately. The Act on Special Cases Concerning the Punishment of Sexual Crimes (성폭력처벌법) punishes, with imprisonment of up to seven years or a fine of up to KRW 50 million, a person who later distributes, sells, provides or otherwise disseminates footage against the will of the person filmed, even if the filming itself was not against that person's will at the time (including where the person filmed their own body) (Article 14(2)).

If such dissemination is committed through an information and communications network for profit and against the will of the person filmed, the penalty rises sharply to imprisonment for a fixed term of at least three years (paragraph (3) of the same Article). This provision may become an issue where the video was posted on a platform that generates income.

If a child or adolescent appears in the video, the provisions on child and adolescent sexual exploitation material apply: production alone is punishable by life imprisonment or imprisonment of at least five years, and sale or distribution for profit by imprisonment for a fixed term of at least five years (Article 11(1) and (2) of the Act on the Protection of Children and Youth Against Sex Offenses (청소년성보호법)).

In the end, the applicable law and the level of punishment differ greatly depending on whether only you appear in the video, whether anyone else who appears consented to the upload, and whether everyone who appears is an adult.

If You Earned Money, Sentencing and Confiscation Both Come Into Play

Because the statutory penalty for violating the Information and Communications Network Act is imprisonment of up to one year or a fine of up to KRW 10 million, it is easy to regard it as light. However, courts take into account the motive, means and results of the crime in sentencing (Article 51 of the Criminal Act), so if videos were posted over a long period to make money and substantial income was earned, that may be weighed against you, and the statutory penalty does include imprisonment.

The income itself may also be clawed back. The Act on Regulation and Punishment of Criminal Proceeds Concealment (범죄수익은닉규제법) treats the crimes listed in its schedule, when committed for the purpose of obtaining an unjust financial gain, as 'serious crimes,' and defines property generated by those crimes as 'criminal proceeds' (Article 2(1)(b) and (2)(a)); the schedule includes the crime under Article 74(1)2 of the Information and Communications Network Act (distribution of obscene material) and the crime under Article 243 of the Criminal Act (distribution of obscene pictures, etc.). Criminal proceeds may be confiscated, and where they cannot be confiscated, their value may be collected (Articles 8(1) and 10(1)). The Criminal Act likewise provides that things produced or acquired through a criminal act may be confiscated, and that their value is collected where they cannot be confiscated (Article 48).

This means that if the payouts received from the platform are assessed as criminal proceeds, that amount may be clawed back separately from the criminal penalty.

What to Check First If You Are Under Investigation

In cases like this, how precisely the facts are pinned down determines the level of punishment and the scope of confiscation. The following should be checked from the early stage of the investigation.

• Upload period and posts — from when to when, and which videos and how many were posted

• Amount of income — how much was actually received according to the platform's payout records, and which part of it relates to the videos at issue

• Content of the videos — whether the videos at issue amount to explicit sexual depiction

• Other people who appear — if others appear, whether they consented to the upload and whether everyone who appears is an adult

If the period or amount of income identified by the investigating authority differs from the facts, correcting that alone can change the outcome. It is important to organize the materials and settle on a response strategy before giving a statement.

Cheongchul Law Firm directly handles criminal cases, including violations of the Information and Communications Network Act and digital sex crimes, from the investigation stage through trial. If you have been contacted by an investigating authority, please contact us through our consultation booking page.

This post is intended to provide legal information and does not constitute legal advice on any specific matter. Conclusions may differ depending on the facts of each case, so please consult a professional.