Can photographing someone fully clothed be illegal filming?

When people think of illegal filming, they tend to picture hidden cameras in toilets or changing rooms. But there are also quite a few cases of photographing someone in leggings on the street or filming the legs of the person sitting opposite on the subway. That is why people ask whether it can be a crime when nothing was exposed.

The body as the law defines it

Article 14(1) of the Act on Special Cases Concerning the Punishment of Sexual Crimes (성폭력처벌법) punishes a person who films the body of another that may arouse sexual desire or shame, against the will of the person filmed, with imprisonment of up to seven years or a fine of up to 50 million won. The provision does not make exposure a requirement. It is structured to ask what the footage means, rather than what exactly was filmed.

Courts judge from the standpoint of an average person of the same sex and age group as the victim, considering a range of circumstances together. Even if the person was clothed, it may qualify if a particular body part was zoomed in on or the person was followed and filmed repeatedly from behind. On the other hand, if a person was merely included in a landscape or an ordinary photo of people, there is room for dispute.

• The victim's clothing and degree of exposure
• The intent of the person filming and how the filming came about
• The place, angle and distance of the filming
• Whether a particular body part was emphasized in the shot

Even if the filming was not completed, even if it was deleted

Article 14 also punishes attempts (Article 15 of the Sexual Violence Punishment Act). If filming has begun, for example by putting a phone under a skirt, it can be an attempt even if no file was saved. The crime is complete the moment the filming takes place, so deleting it later does not make it as if it never happened, and deleted files are often recovered through forensics.

You can be punished even if you did not do the filming yourself. Possessing, purchasing, storing or viewing the footage or copies of it carries imprisonment of up to three years or a fine of up to 30 million won (Article 14(4)). If you forwarded a video you received to another group chat, it is assessed as providing or distributing it, and the same statutory penalty as filming applies.

Videos filmed between partners are no exception. Whether there was consent at the time of filming is assessed scene by scene. Even if filming took place several times with consent, a single occasion without consent is a separate problem, and knowing that one was being filmed is not the same as consenting to the filming.

Other files on the phone make the case bigger

In illegal filming cases, the phone is the most important evidence. If old photos unrelated to the current report are also found, separate cases are added, and if the conduct is assessed as habitual, the sentence can be increased by up to one half (Article 14(5)). If you are asked at the scene to submit your phone voluntarily, you need to state not only whether you will submit it but also the scope, in terms of which period and which apps' data.

For filming with a camera or similar device, you become subject to registration of personal information even if a fine becomes final. This differs from offenses such as obscene acts using communication media, where a fine takes you out of registration, so how seriously the possibility of a suspended indictment is pursued at the disposition stage changes the outcome. Whether the filmed scene is a body as the law defines it is the first issue in that.