한국에서 초상권은 언제 사생활권에서 분리되었나: 학설과 판례에서의 초상권의 독립적 인격권 인정 과정과 그 영향

The concept of protection for portrait, image or likeness was originated from ‘the right to privacy’ or ‘privacy right’ concept in the United States. In Korea, the right of portrait was introduced while introducing the right to privacy of U.S. in 1960s. Meanwhile, the right of portrait was developed as an independent right in the field of intellectual law area in Europe. In Korea, though we dealt the right of portrait as a part of privacy right at first, some began to discuss the right of portrait as an independent personal right distinguished from the privacy right. The same happened in the court rulings. The court recognized the portrait right as a part of privacy right at first, and found the constitutional ground from the privacy protection clause of the constitution. However at certain point, the court also began to recognize the portrait right distinguished from the privacy right, and established its constitutional ground on the protection of human dignity clause. Through this change, the right of portrait, especially the right to refuse the shooting and publish one's portrait gradually became absolute. With certain very narrow exceptions, the right of portrait recognized as absolute right by the theoretic discussions and court rulings. However, there were not enough discussions on in which case or in what circumstances taking and publishing the portrait or image would be banned or allowed freely. This caused conflicts and confusions in everyday news coverage. Some courts ruled against the media defendant when the right of portrait claims came from the persons who actively appeared and commented in front of camera just because of the lack of written permission or agreement on such filming. In Sewol ferry sinking disaster, when the foreign media covered the family members of the victims as they appeared before cameras, the Korean media had to make some kind of digital effect to blur their images not to reveal the identities. This paper explores how the concept of portrait right became absolute, how it became to be recognized as a separate right from the privacy right, both in academic and social discussions and court rulings. This paper suggests reconsidering the relation of portrait right and freedom of expression, or of the press to mitigate the conflict between the rights. This paper does not render a definite answer for this question, but remains just to suggest review into the relation between the rights and the protected area in light of the importance of reasonable balancing the fundamental rights.