Open Net Korea filed a constitutional complaint on October 1, 2025, challenging the deepfake prohibition provisions under the Public Official Election Act (Article 82-8 of the Public Official Election Act).
Article 82-8, Paragraph 1 of the Public Official Election Act (Election Campaigning Using Deepfake Videos), enacted in December 2023, stipulates that “no one shall engage in the production, editing, distribution, screening, or posting of virtual sounds, images, or videos that are difficult to distinguish from reality and created using artificial intelligence technology (hereinafter referred to as ‘deepfake videos, etc.’) for the purpose of election campaigning from 90 days before election day until election day.”
Due to this provision, election campaigning using deepfake materials is completely prohibited during the 90-day period before election day. Regardless of whether the content is true or false, whether consent was obtained from the person whose likeness was used, or whether the material was marked as a deepfake, all materials are prohibited simply because they are deepfakes created using artificial intelligence technology. For violations, severe criminal penalties are prescribed, including imprisonment of up to 7 years or fines ranging from 10 million won to 50 million won (Article 255). Furthermore, not only creators but also those who merely distribute or post such materials are subject to punishment.
A regulation that unconditionally and comprehensively prohibits content simply because it is a ‘deepfake’ created using specific technology, regardless of the content of expression or resulting harm, is clearly an excessive and unconstitutional regulation unprecedented anywhere in the world.
Naturally, deepfakes are not a concept with limitations on ‘content’ and can contain unlimited content; therefore, all deepfakes should not be presumed to be harmful expressions. Even if the purpose of this provision is to regulate expressive acts that harm ‘electoral fairness’ by disseminating false facts with the intent to deceive or mislead voters, it is clearly an excessively unconstitutional regulation to uniformly prohibit all deepfakes that do not fall under this category.
This provision makes no distinction as to whether the content of an expression is ‘false’ or ‘true,’ and furthermore, makes no distinction as to whether it is a ‘statement of fact’ or an ‘opinion or evaluation.’ Therefore, it can regulate even expressions intended to embody and convey truthful facts, as well as satire and parodies. For example, it can regulate expressions that help voters understand by recreating and reconstructing actual facts that have been proven to be true to some degree through other circumstantial evidence, even though no on-site footage remains or evidence has been destroyed or concealed, or expressions that criticize candidates who have engaged in reprehensible behavior through satire and parody and raise questions about the candidate’s fitness for public office. Furthermore, it may regulate expressions intended to effectively convey and promote a candidate’s policies and pledges, or expressions that simply embellish the weather or surrounding objects. It can also regulate expressions for the freedom of anonymous political expression by voters who wish to conduct anonymous election campaigns to prevent political retaliation or disadvantages that may be inflicted depending on election results, or by minorities who fear social oppression and use virtual personas to hide their identities while conducting election campaigns.
Ultimately, this provision goes beyond its legislative purpose and unjustly regulates expressions that should prima facie be protected by freedom of expression, and even political expressions that should receive heightened protection in a democratic society, simply because they were vividly expressed using artificial intelligence technology, making it an unconstitutional provision that seriously infringes upon numerous important freedoms of political expression.
Furthermore, it is unjust to separately regulate expressions using specific technology simply because that specific technology was used in the expression. Technology used in expressive acts is merely a tool or means of expression, and throughout history, people have used developed technology to convey their expressions more vividly and effectively. Regulating and viewing as harmful acts requiring criminal punishment simply because one ‘produced or distributed virtual expressions that are difficult to distinguish from reality using certain technology’ is clearly unconstitutional and tantamount to denying the history of human expressive acts and the purpose of guaranteeing freedom of expression, and infringing upon the essential content of freedom of expression.
Recently, the Constitutional Court ruled that “freedom of political expression is a component of the free democratic basic order and an indispensable fundamental right for the existence and development of modern liberal democracy, so if freedom of political expression is suppressed, popular sovereignty and the principle of democratic politics will become nothing more than empty echoes. … In light of the constitutional status and nature of freedom of political expression and its relationship with electoral fairness, even if the legislature unavoidably restricts freedom of political expression in the election context to guarantee electoral fairness, it must choose means that are the minimum restriction within the scope where the relevance to achieving the legislative purpose is concrete and clear. It is self-evident that for political expression, ‘freedom should be the rule and prohibition the exception,’ and ‘prohibition should not be the rule and permission the exception'” (Constitutional Court Decision 2023Hun-Ka4, March 23, 2023; Constitutional Court Decision 2017Hun-Ba100, etc., July 21, 2022).
Deepfakes that significantly harm electoral fairness can be sufficiently regulated under existing laws. Even before this provision was enacted, the National Election Commission stated that deepfakes presenting false facts could be regulated under the Public Official Election Act’s crime of publicizing false facts. Going beyond this, this provision targets for regulation even all deepfakes for election campaigns that pose no risk of harming electoral fairness, extensively and excessively restricts the fundamental right that should receive heightened protection as freedom of political expression, and prescribes severe criminal punishment, clearly violating the constitutional principle of prohibition of excessive restriction.
This provision can be said to be a model of indiscriminate excessive regulation hastily created while obsessing only over voices calling for regulation of ‘deepfakes,’ without any consideration of the constitutional spirit and principles of guaranteeing freedom of expression. We expect the Constitutional Court to make a stern judgment and issue a decision of unconstitutionality, thereby putting the brakes on hasty legislation that immoderately regulates freedom of expression in the future.
2025. 10. 02
Open Net Korea
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