Hello, we are Team Gwanak 4, Culturing.
We made a QnA about portrait rights of Korea.
What is Portrait Right?
It is a right that one’s picture cannot be taken and published without permission.
How do you determine portrait right infringement?
① Possibilities of Identification
If you can identify yourself by looking at a person's form, your portrait right is infringed. Not only faces but also a whole or a part of your body can be identified as yourself, it is punishable by law for infringing portrait rights.
② When used for commercial purposes without permission
It doesn't matter if you agreed, but if your picture is used commercially without permission, it is punishable by law. For example, YouTube (an online video platform which many people use these days) is the case for commercial use of videos, so others except for you should be blurred.
Laws related to portrait rights
Although there are no regulations about portrait rights expressly stated in the current law, Article 10 of the Constitution, “the dignity and value of human should be guaranteed by the state”, connotes that portrait rights are included in it.
Moreover, Article 750 (1) of the Civil Law states, "A person who harms others’ body, freedom, or honor or distresses mentally, shall also be responsible to compensate for damages besides property." It shows that the infringement of portrait rights is punishable.
Case Analysis of Portrait Rights infringement
1. Since social media became our daily life, photos regardless of time and place are shared in social media. Some people appear as a background in someone's selfie without realizing it. One student found a picture of himself at a restaurant he visited with his girlfriend on a social media of a stranger. In the picture with hashtags such as #HongdaeRestaurants #JMT #HotPlace, he opened his mouth wide just before eating the food. He said, "I felt bad that I was taken a picture and posted on a stranger’s social media without realizing it.” His portrait rights were violated because he was taken a picture and posted without permission.
→ “The right to refuse to be photographed or recorded” and “the right to refuse to be published” are infringed.
“The right to refuse to be photographed or recorded”
Right not to be photographed or prepared recklessly (right to refuse photography or preparation)
Right not to be published or reproduced recklessly (right to refuse publication) in photographs or prepared portraits
2. With the Internet broadcasting craze, there are many people on the streets with cameras for broadcasting. However, someone can be broadcasted live all over the country even though he or she doesn’t want to. "When I walk around the neighborhood on the weekend, I often see people muttering holding selfie sticks," said an office worker living near Hongdae. "They may think they are communicating with viewers, but I don't think it is not appropriate to do with people on the street." "I don't know what broadcast it is and who's watching it, but it's really unpleasant to think that I might be broadcasted,” he said. “It's hard to avoid it, so it makes me find other quiet neighborhoods on the weekend." Filming and publishing others’ face on the Internet without permission is the infringement of portrait rights.
→ “The right to refuse to be published” and “The right that one’s portrait not to be used for profit-making” are infringed.
Right not to be used for profit-making purposes (super-profit rights)
Dismissal cases in portrait rights
In 2014, the Seoul Central District Court received a complaint that "My portrait rights were violated by the press." The complainant sued the press on charges of violating portrait rights, because the press distributed posters of Boryeong Mud Festival with his face and upper body as articles.
However, the Seoul Central District Court rejected the complaint. Boryeong Mud Festival is a world-famous local festival, so the local government doesn’t need to get all the permission of each single person to take pictures and to post them on the poster. Also, even if the complainant's face and upper body were enlarged and appeared on the poster, it is not considered that the organizer and the press abuse or commercially use their portrait rights on purpose.
→ They didn’t infringed “personal rights” and received “an agreement for photograph, record, and publication” and didn’t use it for “profit-making”.
Even it's a picture taken for the scenery, it can violate others’ portrait rights. Let’s be careful and take beautiful pictures!