The former just implies a bad actor, the latter implies a broken system.
Isn't both is what's happening?
OpenAI being bad actor would not have been a problem if OpenAI suffered relevant consequences, like everyone else would have in that scenario. Or at least this is how I understood this.
At most you might try to argue negligence, but there's no sign that OpenAI is being a malicious bad actor here.
Adding unwanted elements to image generation is undesirable by all parties, including OpenAI.
IANAL but there should be an amount of negligence after which you become a bad actor. I think OpenAI crossed that several times over.