Sidelights | Are Erotic Photos Beyond Protection? — A Brief Discussion on Legal Issues Related to Sexual and Private Images

With the convenience of the internet and the popularity of smartphones, sending and receiving information has become an everyday occurrence. The rise of technological devices has also made information transmission much faster. To provide more features and better suit daily life, the number of apps has grown significantly. Coupled with modern society's heightened awareness of information privacy, features like anonymity and message unsend have been developed to meet these needs, which can be found in the social and dating apps we frequently use. Connecting to the theme of this lecture, images and videos are also among the options sent daily. When these involve desire, pornography, and nudity, what legal issues will Taiwan's laws face regarding sexual and private images? For example: the perpetrator's situation after committing the crime, protective measures for victims, and subsequent legislative amendments.

The South Korean Nth Room Case

The perpetrators used Telegram to create chat rooms and began searching for targets, mostly focusing on young women and offering them part-time job information with easy tasks and high pay. They claimed the job simply involved chatting via messages or providing selfies to the other party. However, during the chatting process with the young women, the perpetrators live-streamed the entire interaction, broadcasting the footage to another chat room. These chat rooms were divided into different tiers based on the members' paid amounts. Free members could watch the perpetrator live-chatting with the recruited and deceived women, while selfies or nude photos would result in a transfer to the paid chat rooms. Subsequently, they began making more excessive demands, such as selfies exposing breasts and genitals, and used these to threaten the young women. If they failed to comply, their photos and personal information would be distributed. The acquired images and videos were then sold through paid access or subscription-based models to attract more members.

The Facebook "Baxia" (霸社) Case

This originated from "Baxia," a private Facebook group. The group's administrators posted numerous images and social media accounts of victims on Facebook, drawing massive attention. It was later revealed that some of Baxia's audio and video content came from forums such as "Creative Sishu" (創意私房) and "Touch Space" (觸感空間). The latter platforms partially pixelated or concealed identifiable features of the individuals in the images and videos; purchasing granted access to unpixelated parts of the persons and their personal information, which was used as a tactic to sell and make a profit. The victim was a female internet micro-celebrity. The perpetrator posed as a female online and claimed to be a photographer, gaining trust through long-term social media interaction with the victim and offering her part-time chatting work. The job started as chatting and later progressed to shooting pornographic images and videos. During discussions, they emphasized principles of confidentiality, environmental privacy, and other high-end rhetoric. When the victim realized the job felt wrong and turned to the perpetrator for help, she was subjected to emotional blackmail and threats, began to experience guilt, and fell into a painful cycle of continuing to cooperate in shooting erotic photos. This allowed the perpetrator to sell and rapidly circulate them on Baxia, resulting in more and more people viewing the victim's erotic photos. The victim was also troubled by numerous inquiries asking if she was the person in the photos, with her privacy being wantonly sold, forwarded, and shared across the internet.

Commonalities Between the Two Social Incidents

1. Part-time job / High pay
2. Private / Alone / One-on-one
3. No saving of images / No leaks
4. Chat rooms
5. Live streaming
6. Identity / Sense of shame
7. Reification and commodification of the body and sexuality

Criminal Liabilities of the Perpetrator:

• Crime of voyeurism and disseminating non-public activities and bodily privacy parts (Articles 315-1 and 315-2 of the Criminal Code): The act of voyeurism itself carries a sentence of up to 3 years imprisonment if discovered. For perpetrators who disseminate for profit as seen in the social incidents, the sentence is increased to around 5 years.
• Crime of disseminating obscene articles (Article 235 of the Criminal Code): The act of disseminating obscene items is punishable by up to 2 years imprisonment.
• Crime of intimidation (Article 305 of the Criminal Code): Perpetrators may use emotional blackmail or threats of public exposure, which may involve intimidation, carrying a 2-year sentence.
• Crime of defamation (Article 310 of the Criminal Code): Distributing private, non-public activities, videos, photos, or pictures of victims damages their reputation and is punishable by up to 2 years imprisonment.
• Offenses against computer security (Articles 358 and 359 of the Criminal Code): Secretly hacking into electronic devices or forwarding images and videos without the consent of the parties involved constitutes crimes punishable by approximately 3 to 5 years imprisonment.
• Article 41 of the Personal Data Protection Act: Up to 5 years imprisonment.
• Paragraph 3, Article 36 of the Child and Youth Sexual Transaction Prevention Act: 7 years or more imprisonment.

Social discussions regarding sexual issues remain relatively conservative and are sometimes met with unfriendly gazes. Images and videos uploaded to the internet will never disappear and carry the possibility of endless circulation. After being slapped with negative labels such as "conqueror of hundreds" or "slut," do victims of sexual and private images have the right to be forgotten? At the same time, victim-blaming voices emerge, such as "You wouldn't have gotten into trouble if you hadn't sent photos" or "You brought this upon yourself by dressing so revealingly." Under the pressure of enduring the endless scrutiny of their images, victims must also face public criticism and self-doubt, feeling that their experiences are unspeakable and lacking an outlet for release. These layered labels and attacks undoubtedly constitute secondary victimization. Any pressure coming from all directions can become the final straw that breaks the individual.

Does the criminal liability of perpetrators in the current system solve the victims' problems? Perpetrators face consequences such as imprisonment, fines, and financial compensation, but there is no guarantee that these punishments will reduce the frequency of recurring incidents. Meanwhile, the victims' photos and videos on the internet do not simply disappear. The shocks and harms to their physical, mental, and living environments will continue to affect them, and the social stigma attached to them remains inescapable. There is still a substantial gap between the legal criminal liabilities imposed and the substantive assistance provided to the victims.

Current Legislative Amendment Developments

Advancing in the direction of non-special-law amendments, adding a specific chapter on sexual and private image crimes to the Criminal Code, coupled with corresponding measures and amendments to the Domestic Violence and Sexual Assault Prevention Act, the Crime Victim Protection Act, and the Child and Youth Sexual Exploitation Prevention Act, forms the keywords of the current legislative amendments—the Four-Law Joint Defense.
The Criminal Code added the "Chapter on Sexual and Private Image Crimes" and the "Crime of Intimidating Dissemination of Sexual and Private Images." More detailed definitions of the standards for sexual and private images in the statutory provisions, the legal interest discrepancy between threatening to disseminate sexual and private images versus threatening life, and discussions on how to subsequently handle or destroy distributed images and videos all require further discussion to build consensus.

Shooting nude images and videos to display one's physique is a symbol of confidence and the freedom of everyone's bodily autonomy; infringing behaviors that cross the boundaries of moral norms are, of course, a different matter. There are still many social incidents continuously occurring in news headlines. Victims are willing to use their own experiences to alert the public and bring social issues to light. Under high public attention, this indirectly pushes the government and society to pay closer attention to the progress and status of these legislative amendments. The government is also doing its utmost to promote cooperation among social workers, social welfare units, and medical units. However, whether the speed of judicial enforcement can keep up with rapid technological advancements is a matter we must continue to invest effort and concern in.