Series Order
Part 1 | When a Company Fails to Pay for a Transaction
Part 2 | Continued Use of a Business Name and the Transferee’s Liability
Part 3 | A Company Director’s Liability for Damages
Part 4 | The Person Hiding Behind a Company
Part 5 | What to Consider After Being Assaulted
Part 6 | What Is an Appropriate Criminal Settlement Amount?
Part 7 | If You Cannot Remember What Happened After Drinking, Could It Constitute Quasi-Rape?
Part 8 | Freelancers and Severance Pay
Part 9 | What to Consider When Assigning a Claim to Secure Business Financing
Part 10 | Can You Divorce a Foreign Spouse Who Has Disappeared?
Part 11 | Can a Tenant Terminate a Lease If the Landlord Delays Repairs?
Part 12 | Can a Subcontractor Receive Payment If the Main Contractor Disappears?
Part 13 | What to Know Before Your First Police Interview
Part 14 | Can a Buyer Recover a Deposit Before Receiving Approval for a Contract in a Land Transaction Permit Zone?
Part 15 | Is Entering Another Person’s Home While Concealing a Criminal Purpose Trespassing?
Part 16 | Impersonating Another Person on Instagram Can Lead to Criminal Punishment
Part 17 | When Does Indecent Assault Occur?
Part 18 | When Repairs Are Required After a Water Leak, Can the Tenant Decide How the Work Is Done?
Part 19 | How Far Does a Real Estate Agent’s Duty to Explain Extend?
Part 20 | Does Swearing in a Residential Area Constitute Criminal Insult?
Part 21 | Can Damages Be Claimed for Incorrect Tax Advice Without a Formal Engagement Agreement?
Part 22 | Can Families Claim Damages for the Exhumation of an Ancestral Grave?
Part 23 | How Far Does Individual Liability Extend in Cambodia-Based Scam Rings?
Part 24 | When Does Filming Sexual Activity Between Partners Become a Crime?
By Hong Seung-kwon, Principal Attorney, PAN Law Office(skh@law-pan.com)
People in romantic relationships sometimes record sexual activity with mutual consent. Being in a relationship does not, of course, give either partner unrestricted permission to film the other’s body. Article 14 of South Korea’s Act on Special Cases Concerning the Punishment of Sexual Crimes punishes the use of a camera or similar device to film a person’s body in a manner capable of inducing sexual desire or shame, against that person’s wishes.
If the person being filmed consented, the filming does not constitute this offense. Consent may be express or implied. In practice, disputes often concern implied consent. For example, if a person clearly permitted filming on the first few occasions but said nothing on subsequent occasions, the question is whether consent can be inferred. Consent does not necessarily have to be expressed in words.
Courts sometimes recognize implied consent after considering the relationship between the two people, the content of the recording and the circumstances in which it was made. Consent nevertheless requires careful assessment when a person merely remained silent, felt unable to refuse for fear of damaging the relationship, had impaired judgment because of alcohol or discovered the filming only afterward. Even if partners previously agreed to record sexual activity on several occasions, that earlier consent cannot readily be assumed to cover a later recording made secretly while one partner was asleep or with a phone placed out of sight. Courts have also cautioned against readily inferring implied consent merely because the person being filmed did not actively stop the recording or took no action despite knowing that the video might have been saved on the other person’s phone.
Consent to filming must also be distinguished from consent to retaining, sharing or distributing the recording. Someone might agree to be filmed on the condition that the partners “watch it there and then delete it immediately,” only for the other person to keep the video in breach of that agreement. Merely continuing to retain a video that was lawfully recorded with consent does not, in itself, necessarily constitute a crime. However, initial consent to filming does not give the other person unrestricted authority over the recording, and subsequently providing it to others or publicly displaying or screening it against the wishes of the person filmed is separately punishable.
Once a digital video has been created, it is very easy to copy and transmit, and the resulting harm can be difficult to reverse. This makes it particularly important to clarify the scope of consent within an intimate relationship. The nature of a romantic relationship often means that consent to filming is not explicitly expressed.
For the person allowing the recording, the safer approach is to ensure that filming takes place only when they have expressly consented, helping to prevent future harm. The person seeking permission must remember that express consent on one occasion does not extend to subsequent recordings. Particular care is required when retaining a video and showing it to others, as doing so may constitute a separate offense.
About the Author
Hong Seung-kwon is the principal attorney of PAN Law Office. His practice covers civil and criminal litigation as well as emerging legal issues in the digital era. He continues to examine how technological innovation, property rights and changes in regulatory policy affect law and market order.
