언론에 의한 초상권 침해 판단 기준의 구체화에 관한 연구

When infringement of the portrait rights by media is at issue, whether it is the object of legitimate public interest in relation to public interests should be the higher standard of judgment, as in privacy infringement cases. When deciding whether certain shooting or reporting of portrait by media corresponds to infringement of portrait rights, portrait rights and freedom of media should be treated as equal at the abstract level. Therefore, if the subject of the report is judged to be “object of legitimate public interest in relation to public interest”, “supplementation and urgency of infringing acts” should not be a factor in judging illegality of media report. However, “supplementation and urgency of infringing acts” can be a criterion when using unethical methods of coverage such as hidden cameras is unavoidable. While the constitutional basis for protection of portrait rights is evaluated as different from privacy, it is judged along with infringement of privacy in judging illegality. Accordingly, the scope of the portrait rights is very ambiguous. When judging the illegality of the infringement of portrait rights, it is desirable to exclude elements related to privacy as much as possible, and to judge privacy infringement separately from the infringement of the portrait rights. In addition, whether or not the subject was photographed at a moment when the filming could not be properly predicted, and whether or not he tried to reveal himself, should be considered important in determining whether the portrait right is infringed.