비동의 촬영⋅반포에 대한 형법적 규율

Due to the development of information and communication technology, recently, infringement of legal interests related to personal image information containing a person’s face and body has become a serious problem. Looking at the current regulations on filming and distributing non-consensual images of people’s faces and bodies in Korea, first of all, there is a regulation through the compensation system for damages in accordance with civil illegal acts. In addition, since image information is also included in personal information under the Personal Information Protection Act, regulations are being implemented according to this Act. However, there is a limit to the method of civil remedies through granting the right to claim damages for infringement of the right of portrait, and the general regulations under the Personal Information Protection Act. Considering that the Communications Secret Protection Act stipulates criminal punishment for infringement of confidentiality and freedom of communication and dialogue, it is necessary to examine whether similar infringement of legal interests, i.e., non-consensual filming and distribution of faces and bodies, is necessary. In the case of non-consensual filming, it is considered reasonable to be criminalized only when privacy secrets and freedoms are violated in residential or private places, and to be excluded from criminal punishment when non-consensual filming is performed in public places. In the case of non-consensual distribution, criminal punishment for this should be defined in consideration of the issues of conflict with freedom of expression, freedom of press and publication, and freedom of learning and art. Therefore, it is better to treat a simple infringement of the right of portrait as compensation for damages resulting from a civil tort, to resolve it flexibly through civil litigation, and to punish only the cases where the act of distributing non-consent leads to ‘infringement of reputation’, that is, ‘defamation’. In conclusion, it is appropriate to legislate in the form of revising the existing law on defamation in order to penalize defamation caused by Non-consensual distribution, and to establish a new ‘Criminal photographing of residence’ after the crime of Burglary in the criminal code to regulate non-consensual filming.