재판중계와 초상권 침해 –미국법리와의 비교법적 고찰을 중심으로-대법원 2025. 2. 27. 선고 2023다233895 판결에 대한 평석-

The question whether a person incurs tort liability for damages by posting a video or photograph in which another person’s face is shown without that person’s voluntary consent has emerged as an issue comparable in importance to defamation. The judgment under review held that the live broadcasting of the Supreme Court’s public oral argument in a criminal case, and the posting of the video of that argument on the Court’s official website, do not constitute an unlawful infringement of the person’s portrait right. Under Korean case law, posting such images without voluntary consent constitutes a tortious infringement of a distinct personality right, namely the portrait right. A final determination on unlawfulness, however, requires a balancing of competing interests, and the Supreme Court’s guidance on the relevant factors remains somewhat vague and abstract. As disputes over portrait-right infringement are expected to increase, it is necessary and desirable to establish clearer criteria for assessing unlawfulness, and United States doctrine may provide useful guidance. U.S. law, in the form of the tort of public disclosure of private facts, seeks to prevent “unwanted disclosure of one’s private life in private spaces,” while allowing disclosure where a public-interest need, such as the public’s right to know, exists. By reference to this, it would likewise be desirable in Korea to treat “public interest” and “privacy interest worthy of protection” as primary factors in the balancing of interests. On the side of the allegedly infringing conduct, the first question should be whether a public interest can be recognized in the relevant portrayal. On the side of the harm suffered, an important question is whether, in light of factors such as the victim’s voluntariness or the ordinary, everyday, or already publicly known character of the conduct disclosed, there remains any privacy interest worthy of protection. Recent precedents, as well as the judgment under review, appear to treat these as key factors in the assessment of unlawfulness. The principle of public trial is constitutionally guaranteed. In the case, the bench, in light of the specific circumstances and having regard to the public’s right to know and the degree of involvement of the parties, determined that broadcasting of the court proceedings was necessary. In light of the strong public interest in the broadcasting of court proceedings, it is difficult to find that the defendant’s portrait right was infringed. The conclusion of the judgment under review is well-founded.