On June 9, 2020, the amended Telecommunications Business Act (the “TBA”) and the Network Act (collectively, the “Amended Acts”) were promulgated to impose stricter liability on online content providers (“CPs”) for the distribution of illegal sex images and videos.  The Amended Acts will become effective on December 10, 2020, although there will be a one-year grace period to implement the technical and administrative measures required by the TBA.

Due to the recent “N^th Room” case, public concern grew over secondary damages to victims of illegal sex images and videos.  As a result, the Amended Acts were introduced to eliminate the distribution of illegal sex images and videos by enhancing the duties and liabilities of CPs to take measures such as promptly taking down and blocking user access to illegal sex images and videos.

The key provisions of the Amended Acts are as follows:

1.   Expand the Scope of Content for Which CPs Need to Take Measures to Prevent Distribution

CPs that must take prompt measures to prevent the distribution of certain illegal contents (e,g., taking down and blocking user access to the contents) include those reported as value-added service providers as well as certain special value-added service providers (collectively, “Subject CPs”).  

According to the Amended TBA, in addition to the contents that are filmed illegally as defined under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, CPs must also take prompt measures to prevent the distribution of “illegally edited content” as well as “sexually exploitive content depicting a child or youth” (collectively, “Illegally Filmed Content”) under the Act on the Protection of Children and Youth Against Sex Offenses. 

2.   Expand the Scope of CPs Required to Take Technical and Administrative Measures

Pursuant to the Amended TBA, Subject CPs meeting certain threshold requirements (i.e., service type and business size) will need to implement technical and administrative measures as prescribed by the Presidential Decree to prevent the distribution of Illegally Filmed Content.

Further, pursuant to the proposed amendment to the Enforcement Decree of the TBA (July 27, 2020), CPs required to implement technical and administrative measures are (i) those that provide services to share/distribute videos, etc., and (ii) satisfy one of the following criteria as designated by the Korean Communications Commission (the “KCC”):

• Service provider whose revenue in the preceding year was KRW 1 billion or higher in the telecommunications service sector;
• Service provider whose daily average number of users was 100,000 or more during the past three months; or
• Service provider against whom a corrective order was issued within the past two years by the Korea Communications Standards Commission (the “KCSC”) in connection with the illegally filmed contents.

Pursuant to the above proposed amendment, technical and administrative measures include the following:

• Enable users to report Illegally Filmed Content at any time; 
• Restrict users’ search results of content after comparing names or titles of the content and identifying them as Illegally Filmed Content;
• Restrict uploading of content if, after comparing characteristics of content, etc., the content is identified as the one that the KCSC has reviewed and determined as Illegally Filmed Content; and
• Notify users in advance that uploading Illegally Filmed Content may result in deletion of the content, blocking of access to the content, or punishment under the relevant law.
   

3.   Impose Obligations to Designate a “Distribution Prevention Officer” and Submit a Transparency Report

The Amended Network Act will impose a new duty on CPs meeting certain thresholds prescribed by the Presidential Decree to designate a “Distribution Prevention Officer,” who would be responsible for preventing the distribution of Illegally Filmed Content and submitting an annual “transparency report” to the KCC on their efforts to prevent the distribution of Illegally Filmed Content.

According to the proposed amendment to the Enforcement Decree of the Network Act announced on July 27, 2020, CPs obligated to designate a Distribution Prevention Officer and submit the annual transparency report are the same CPs that are required to implement technical and administrative measures. 

The KCC collected public comments during the pre-announcement period that ended on September 6, 2020, and is expected to re-announce the above proposed amendments to the Enforcement Decree of the Amended Acts shortly after partially revising its previous version.  After another public comment period, the revised version will be reviewed by the Regulatory Reform Committee and the Ministry of Government Legislation.  The proposed amendments will likely be finalized around November 2020. 

The Enforcement Decree of the Amended Acts provides details on the Amended Acts, such as the specifics of the technical and administrative measures, the scope of CPs required to implement the measures, and the scope of CPs required to designate a Distribution Prevention Officer.  We advise monitoring the legislative process and actively presenting opinions as necessary.