판례에 나타난 초상권 적용 법리에 대한 고찰

Protecting the freedoms of the press promotes democratic self-government by realizing free speech, facilitates the search for truth, and protects the free flow of information through such media as magazines, newspapers, television, and film. At the same time, the portrait right creates an exclusive right in an individual for protecting of his or her personality. The free press and the portrait right conflict constitutionally in the mixed situation of public interest and personality protection issues. When confronted by such a conflict, courts almost invariably subordinate the interests protected by the portrait right to competing free press interests unlike defamation case. Despite the small amount of compensation, the tendency of these courts is making worry about the shrinking effect of the news. These two rights have an important meaning in modern democratic society and the information day. Thus, courts need to review conflicts between the two rights by ad hoc balancing the interests protected by the portrait right against the interests protected by the free press. So this approach concentrates on resolution method of the competition between an individual's interest in the control of his or her personality and the public's interest in free press. We should prepare measures to protect the freedom of the press by setting exceptional cases without the consent of the parties, institutionalizing procedural road-map in photographing, reifying indemnification in punishment to the extent that it does not impair the essence of portrait rights.