By Park Eun-ji
Photos of you and me pour daily into social media such as Facebook, Twitter or Instagram, as well as in traditional publications and broadcasting media. Whether professionally, or not, many people take pictures on the streets and in other public places. However, for street photographers, there exists a significant issue to worry about ― the issue of possibly infringing on “personality rights” at the moment of shooting anybody, even if they are only in the background of the picture.
There is no concrete definition of “personality rights” in Korean law. However, the Seoul Southern District Court has delineated the concept of these by admitting a legal guarantee preventing a person from being photographed without permission and that image then being published or used for profit in advertising among other things. If someone feels their personality rights have been infringed, they can sue for damages under Articles 750 and 751 of the Civil Act.
Now, let’s discuss specific examples of cases where there could be a violation of personality rights and where not.
First of all, when a person photographed gives permission to the picture taker, there cannot be an infringement of personality rights since a person can freely give up his individual rights. However, there is something to bear in mind. Even if there is consent to the use of the picture, the photographer can only use the photo if the purpose is to show the likeness of the person photographed. In other words, it will be deemed a violation of personality rights if the picture is not used for its original purpose or beyond the permitted scope of the photograph at the time of the consent.
Second, an infringement of personality rights when it is necessary for the public interest is allowed. In 2009, the Seoul Central District Court ruled that “the violation of personality rights is not recognized in cases such as rallies in public places, photographs taken at a demonstration site.” In other words, you do not have to worry about violating someone’s personality rights when you take pictures of people for the purpose of publicity, such as at press conferences.
Third, for celebrities such as politicians, high-ranking officials, entertainers, and athletes, whose images are widely known to the public, there is not much chance of infringing their personality rights when they conduct public activities. However, it should be noted that the pictures of celebrities in private spaces such as cars, restaurants and department stores could be a violation. Even in places classified as public spaces, photographs of celebrities are only allowed on a limited basis.
So what must you do when it is possible you might be infringing someone’s personality rights when you are taking a photo or video?
The surest way to avoid confusion is to obtain signed written consent, from the photographed person in advance, stating, “I allow the photograph or video to be distributed or screened, and I give consent to the use of my personality rights and do not raise any objections.”
However, there may be some cases where it is impossible to obtain consent. In this case, at least indirect efforts should be made to seek consent to use of someone’s personality rights.
For instance, on public streets, at markets, airports or parks, the scope of the shooting area should be determined in advance with certain starting and ending points. Then a notice should be posted at an easily visible location, to inform the public that “A video/photograph is being shot between points A and B, so when passing through that space, your image might be recorded in a picture/video that will later be displayed or distributed. If you have any objection, please avoid this area for the time being.” In case of possible disputes on infringement of personality rights, you can prepare this written notice as evidence to inform the public of shooting of photographs and videos at a reasonable time and place.
Park Eun-ji is a lawyer in the Tech & Comms, Corporate, and Employment & Labor practice groups, and has successfully defended large corporations across a wide range of industries in cross border litigations.