SNS상에서 일반인 아이덴티티(identity)의 퍼블리시티권 보호에 관한 연구 - 미국에서의 논의를 중심으로

Distinctive technical attributes of Social Network Services (SNS) enables users to introduce and advertise themselves by publicly displaying their identity. This allows other users to obtain personal informations directly from whom they want and even from their friends. On the other hand, SNS face challenges in protecting and controlling the personal information and identity of users as it is increasingly common for the information to be leaked, distributed or collected without consent. This study, therefore, proposes to investigate the appropriate legal protection policy for the personal information and identity publicly displayed in SNS environments. SNS users explicitly express their desires for self-expression of personal information and identity' by creating personal profiles and by updating their information displayed on these profiles. This could result in the interpretation that the users waived their reasonable expectation of privacy, hence this study hardly expects that the law of privacy to be applied to protect the personal information and identity of SNS users. Therefore, it is necessary to consider how the law of publicity rights could be applied to this matter. The important issue is the commercial use of an individual's name or likeness on SNS without the user's consent. In 2011, Fraley, et al., users of Facebook, sued the company, alleging that its "Sponsored Stories" feature, which displays ads on Facebook containing the names and pictures of users who have "Liked" a product, violates California's Right of Publicity statute. Facebook argued that its actions fall within the §3344(d) "newsworthiness"exemption for which consent is not required, and that, in any event, plaintiffs consented to the use of their identities and failed to allege sufficient injury under §3344(a). The court ruled that Facebook's publication of the plaintiffs' "Likes" was for commercial advertising purposes, which removes them from the scope of §3344(d)‘s privilege. To the second issue about the consent, the court determined that whether Facebook's Terms of Use gave the defendant the right to use the plaintiffs' identities in the form of Sponsored Story advertisements remains a disputed question of fact and is not proper grounds for dismissal at this time. Lastly, the court found the plaintiffs' allegations of provable commercial value sufficient to survive a motion to dismiss. The court granted in part and denied in part the defendant's motion to dismiss and the plaintiff could proceed with the suit continuously. This case shows the broad implications for the right of publicity in the world of social media. The concept of the right of publicity has not been settled in Korea. However, the number of cases related to the right of publicity are increasing continuously. Each state in the USA has developed its own way of protecting the right of publicity. Examining their statutes would be helpful to deal with the issues about the right of publicity in Korea. It is still controversial whether non-celebrity identity holds commercial value and whether an individual has any necessity to protect his or her identity under the right of publicity. However, we need continued discussion and considerations about these issues to further develop this theory as the right of publicity becomes increasingly relevant to our daily life.