[비즈한국] Companies sometimes make decisions that are difficult to explain based on money alone. Understanding the laws or systems hidden behind these actions allows one to grasp the finer details. 'Useful Business Secrets (Al-Ssul-Bi-Beop)' introduces clues that help understand the flow of business.
There is such a thing as a 'Virtual YouTuber (VTuber).' For someone like me, a 'Young Forty,' it is a very unfamiliar concept. In the past, immersion in virtual images, as depicted in 'Ghost in the Shell' or 'Blade Runner,' was perceived as a dystopian metaphor. The public seemed enthralled by the giant geisha image that appeared in the opening of Blade Runner.
However, technology and culture have outpaced perception. VTubers are no longer an exceptional phenomenon. For the younger generation, in particular, they function as natural subjects of communication. While watching a VTuber performance, I was impressed by the technological progress that allowed movements to be rendered without latency even though the performer was physically in a different location. However, other audience members' eyes were focused on the VTuber itself. They felt no sense of incongruity in equating the real performer with the virtual character.
Amidst these changes, the question arises: 'Can an insulting act against a VTuber be punished as an insult under criminal law?' In this article, I would like to organize the discussion by categorizing VTubers.
Categorized by type, VTubers are as follows: First, cases where the existence and identity of the performer are clearly revealed. For example, 'Isekai Rock Star Soop-Tjong-Hun.' The real person behind Soop-Tjong-Hun is the famous singer Kim Jang-hoon. Why would a celebrity engage in VTuber activities? It is akin to cultivating a 'sub-character' (alt persona). They are expanding their reach by operating with a different image (persona) than before.
Second, cases where organizations or companies produce and release VTubers for advertising and promotion. In this instance, the VTuber activity does not represent the performer's personality but takes on the character of a project product created by capital and planning. In Korea, there are cases where securities firms or home shopping companies create VTubers to promote their services, but the leader in this field is, of course, the VTubers produced by specialized Japanese entertainment companies.
Third, cases where it is clear that a single performer is acting, but their identity is not clearly revealed. For example, cases where the voice was revealed through VTuber activities, and personal details such as addresses were occasionally exposed during the process, but it is difficult to specifically identify who the performer is based solely on this information.
Article 311 of the Criminal Act defines the crime of insult as occurring when one 'publicly insults another person.' Therefore, the components of the crime of insult are 'publicity,' 'object (specificity of the victim),' and 'insulting act,' and all of these must be met for the crime to be established. Publicity means a state in which an unspecified number of people can perceive it, and an insulting act refers to contemptuous feelings or abstract judgments that could lower a person's social standing.
The biggest issue in whether an insult charge can be established against a VTuber is the object of the act. Natural persons and organizations can be the objects of an insult charge, but in practice, it is mainly when a person, i.e., a natural person, is insulted that one is punished for the crime.
In the case of insulting a VTuber whose existence and identity are clearly revealed, an insult charge is established without much difficulty. This is because the insult is considered an insult to the performer, damaging the performer's personal value and social standing.
It is difficult to view the insult charge as being established for VTubers created by organizations or companies where the identity of the performer is unknown or the performer is unimportant. This is because it is a type of work-related copyright product rather than an expression of the performer's personality, making it hard to identify a specific victim. Since such VTubers are products of capital and planning, acts that damage or interfere with them can be sanctioned through charges of obstruction of business or copyright infringement.
The most contested case is when a performer exists, but their identity is not revealed. First, there is a ruling that civil liability for illegal acts is established if such a VTuber is insulted. In the so-called 'PLAVE case,' the Goyang Branch of the Uijeongbu District Court recognized the illegal act liability for a person who insulted the members of PLAVE for the following reasons:
· An avatar refers to a virtual expression used by a real-world user to represent themselves in a digital space. Given that the crime of insult under criminal law protects external honor, which refers to social evaluation of a person's value, and that in the metaverse era where the real world and digital world are fused, an avatar is not merely a virtual image but a means of the user's self-expression, identity, and social communication, an act of insult toward an avatar can also be evaluated as an act that infringes on the external honor of the actual user, depending on specific circumstances.
· In particular, if the identity of the person using the avatar is revealed, and the avatar is equated with the user by an unspecified number of people, then an act of insult toward the avatar can be seen as an act of insult toward the actual user.
The five-member virtual boy group PLAVE does not reveal their real bodies. Therefore, officially, it is impossible to identify who the members are. However, it is clear that a real person exists, and the existence and identity of the person would at least be known to family or the agency. The aforementioned Goyang Branch ruling appears to have ruled that, considering these circumstances, since the identity of the person using the avatar is revealed (within a certain range) and an unspecified number of people equate the avatar with the user, an insult to the avatar can be seen as an insult to the actual user.
Meanwhile, as mentioned earlier, since Japan is the originator and leader of VTubers, Japanese cases serve as a significant reference. It appears to be the general view in Japan that even if a VTuber's identity is not revealed, various legal responsibilities arise if that VTuber is insulted.
For example, in 2023, the Tokyo District Court issued a ruling granting a request to disclose the personal information of a malicious commenter on the grounds that posts about a character could lower the social evaluation of the character's performer. The Osaka District Court also ruled that even if an insult is ostensibly directed at a VTuber, if it is recognized as being directed at the person acting as the VTuber, it should be viewed as an infringement of the performer's personal interests.
Currently, opinions are divided on whether the crime of insult under criminal law is established for VTubers that are not work-related products but have a clear performer whose identity is not revealed (as seen in the Goyang Branch ruling, there are rulings that recognize civil illegal act liability). I believe it is only a matter of time before it is recognized as a crime of insult in practice.
The reasons are: First, a VTuber is a means for the performer to express themselves, so one cannot deny the existence of the performer just because it is a VTuber. If the fact that the performer and the VTuber are the same entity is known to people within a certain range, an insult to the VTuber can be regarded as an insult to the performer. This has been recognized by the Japanese judiciary and the Goyang Branch civil ruling.
Second, there is a need to sanction insulting acts against VTubers from an industrial perspective. In the past, when the economic value of characters was emphasized, US companies holding the intellectual property (IP) of characters emphasized character protection using copyright laws, which escalated into trade issues. This is an attempt at legal protection by focusing on the power of the character, and the situation for VTubers is no different. It is no coincidence that the country where VTuber activities are most active is Japan, and that rulings protecting VTubers have been handed down in Japan.
Third, the most essential reason is the reality of the victim. If you insult a VTuber, the performer suffers emotional distress. Because the performer equates themselves with the VTuber, when someone insults the VTuber, the performer considers themselves to be insulted. The logic that a crime cannot be established when a victim clearly exists is actually what is unnatural.
If the above discussion still feels awkward, it may stem from the difference in sensibility between generations for whom concepts like avatars, cyber identity, and the metaverse are unfamiliar. The law reflects changes in society. Now is the time to seriously discuss acts of insult toward VTubers as subjects of criminal liability.