In Korea, it is generally understood that Articles 10 and 17 of the Korean Constitution (대한민국헌법) guarantee an individual’s so-called personality rights (초상권).

Article 10 deals with “the right to human worth and dignity + the right to pursue happiness,” while Article 17 deals with “the right/freedom to privacy.”

Personality rights can essentially be broken down into:

1) Right to Privacy (프라이버시권), and

2) Right of Publicity (퍼블리시티권).

<Right to Privacy>

1. It is the right to be left alone and not have one’s likeness (e.g., face, body part) represented publicly without permission.

2. The “face” or “body part” must be attributable to a specific person. In other words, the pictured/photographed face or body part must be recognizable/identifiable. Permission, meanwhile, can be presumed. For instance, deliberately walking into an area where one should have known a TV show was being shot.

3. Infringement can occur either by: a) Taking pictures/photos without permission, or b) Making public such pictures/photos without permission.

4. Factors for Consideration: a) Did the person pictured/photographed give permission? (express or implied) + b) Did picture/photo single out the person? (vs. merely part of the background) + c) Was the person pictured/photographed in an objectively unfavorable light? (i.e., a reasonable person would feel humiliation) + d) Is the person a public figure? If so, was the picture/photo taken in a public place? + e) Finally, does the picture/photo serve a public purpose?

5. Infringement is not a crime. It is a civil matter. The infringer could face tort liability. Sometimes, infringers “get away” because the pictured/photographed person was: a) unaware of the infringement, or b) aware but could not be bothered.

<Right of Publicity>

1. It is the right to keep one’s image/likeness from being commercially exploited without permission.

2. Unlike “right to privacy,” this right is more of a “property right.”

3. Most often, public figures such as celebrities decide to seek legal remedy for infringement.

4. Factors for Consideration: a) Did the person pictured/photographed give permission? (express or implied) + b) Was the photo/picture used commercially (e.g., to promote one’s business)?

5. Infringement is not a crime. It is a civil matter. The infringer could face tort liability. Sometimes, infringers “get away” because the pictured/photographed person was: a) unaware of the infringement, or b) aware but could not be bothered.

<Food for Thought>

1. CCTV (Closed-circuit television): In Korea, CCTVs set up in public places for purposes of facility safety and/or fire and crime prevention are allowed. But, the issue of legality is not always crystal clear. Abuse can make such use illegal. Also, it’s generally a good idea to inform the public that they are being recorded, etc.

2. Google Glass: In my opinion, the use of such glasses (in Korea) is highly likely to infringe upon a person’s “right to privacy” under Korean law. The question is how to monitor such monitoring. Of course, changing the current interpretation of the law is also an option.

Thanks for reading!