[2] The case holding that Gap broadcasting company cannot be held liable for damages to Gap broadcasting company in a case where Gap broadcasting company photographs screen pictures without Eul's consent to ask Eul who is an employee Eul to ask Eul for an official position after Gap broadcasting company was found to be for news gathering

[2] The case holding that in a case where Party A’s broadcasting company and Party B’s broadcasting company filmed Party B’s voice without Gap’s consent and broadcasted Party B’s voice without altering Eul’s voice without Gap’s consent, even if Party B’s voice without Gap’s consent, it can be accepted in light of the social norms, and even if Party A’s broadcasting company filmed Party B’s lower body part of Party B’s voice without Eul’s short consent, it is hard to view that Party A’s body could cause a sense of sexual shame in light of the ordinary news reporting practices in order not to infringe upon its portrait rights, and thus, it cannot be acknowledged that Party A’s liability for damages was not violated

2. The remainder of the plaintiff 1's claim against the defendant 1 and C&D Co., Ltd. and the plaintiff 2's claim against the defendant Korea Broadcasting System are dismissed, respectively.

3. Of the costs of lawsuit, the portion arising between Plaintiff 1 and Defendant 1 is three minutes, and the remainder is borne by Plaintiff 1; the remainder is borne by Defendant 1; the portion arising between Plaintiff 1 and Defendant Chata Co., Ltd. is ten minutes; the remainder is borne by Plaintiff 1; and the remainder is borne by Defendant Chata Co., Ltd.; and the part arising between Plaintiff 2 and Defendant Chata Co., Ltd is borne by Plaintiff 2.

4. Paragraph 1 can be provisionally executed.

2. Defendant Korea Broadcasting System shall pay to Plaintiff 2 the amount of KRW 10 million with 5% per annum from August 22, 2015 to the delivery date of the instant complaint, and 15% per annum from the next day to the day of full payment.

A. Facts of recognition

(1) Defendant 1 sells golfware of the trademark called “ Paris Latts” at the New World department store Busan City Center, and Defendant Chata Co., Ltd. (hereinafter “Defendant Company”) is a company that imports the golfware of the trademark of “ Paris Latts”.

(2) The Plaintiff, while operating the four-day Partnership, posted his/her photograph (hereinafter “instant photograph”) suffered from the golfware of the Paris Libers trademark, while operating his/her business by using the None Star Program, Paz, and Social Relations Network Service (SNS; hereinafter “SNS”), such as Saz, on the Lone Starg, which called “ Paris Laz” (hereinafter “instant photograph”).

(3) On June 20, 2015, Defendant 1 posted the instant pictures on the NAEN Doz’s “Magz,” which he operated without the Plaintiff’s consent, on which Defendant 1 posted the instant pictures on the NAEN. In addition, Defendant 1 stated the phrase “the following pictures are the Paris Doz’s image of the SNS, a photograph-sharing SNS.”

(4) On August 17, 2015, Defendant Company posted this case’s pictures posted in Sone Starg, without the Plaintiff’s consent, on the page of Defendant Company. Moreover, the Defendant Company stated the phrase “the above pictures have the Paris store of Sone Starg, a SNS sharing.” At the time of this issue, the Defendant Company stated the phrase “Parly Goneg Rate 1naver.com”

(5) On August 11, 2015, Defendant 1 received the phone call from the Plaintiff regarding the posting of the instant pictures without permission, and immediately deleted the relevant pictures from the NABD and posted a apology. Defendant 1 sent the Plaintiff a letter of intent with the intention of the apology by exposing the apology posted on the NABD and exposing the apology posted on the NABD to the Plaintiff.

(6) On August 18, 2015, the Defendant Company deleted the Plaintiff’s pictures from the Facebook immediately after hearing the Plaintiff’s above facts from Defendant 1.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1, 2, Eul evidence 1-2, the purport of the whole pleadings

B. Parties’ assertion

(1) The plaintiff's assertion

The Defendants infringed upon the Plaintiff’s portrait rights by bringing the Plaintiff’s instant pictures posted in Sone Star Program without the Plaintiff’s permission, and posting them on NABP or Paint, which are used for his own business. Therefore, the Defendants are obliged to pay consolation money for emotional distress suffered by the Plaintiff.

(2) The defendants' assertion

Personal information management policies posted on the website of Sone Star Program provide the user with a platform through which the user can openly share the notices, such as pictures, comments, and other contents by using the service. In other words, the entire content of the user under disclosure through the service provides that other user may search, inquire, use, and share it in accordance with the terms and conditions of the personal information management policies and the terms and conditions of the user of Sone Star Program. Therefore, it is reasonable to view that the Plaintiff’s posting of the instant photograph on the Paris Program by using it on the “Maone Star Program” to allow other persons to search, inquire, use, and share it in advance. As such, since the Defendants did not use the Plaintiff’s photograph without permission, it cannot be deemed that the Plaintiff infringed the Plaintiff’s portrait rights.

C. Determination

(1) Occurrence of damages liability

Any person has a right not to photograph, describe, or publish without permission, his/her face and other physical characteristics recognizable as a specific person by social norms, and not to be used for profit. Such portrait rights are constitutionally guaranteed by Article 10(1) of the Constitution of Korea. An individual has an active right not only to engage in private activities but also to actively control his/her own information in today's highly informatization society (see, e.g., Supreme Court Decisions 2004Da16280, Oct. 13, 2006; 2010Da39277, Jan. 27, 2012; 2012Da316286, Jun. 27, 2013). Therefore, unjust infringement on portrait rights constitutes tort (see, e.g., Supreme Court Decisions 2010Da39277, Oct. 13, 2006; 2012Da31268, Jun. 27, 2013).

In light of the above legal principles, in light of the following circumstances, it is reasonable to view that the Defendants’ using the instant pictures without permission infringed upon the Plaintiff’s portrait rights, and that the Plaintiff suffered emotional distress.

(1) Even if the terms and conditions of the use of Lone Star Program, as the Defendant’s assertion, provide that the content may be used and shared at will, it cannot be interpreted as allowing the use of the content for profit-making purposes.

② The Defendants posted the instant pictures on the NAV or on the Facebook appears to have a view to promoting their own business. The use of the instant pictures for profit-making purposes without permission is beyond the scope anticipated or permitted by the Plaintiff, and it is reasonable to deem that the Plaintiff’s right to control and portrait of his own information infringe upon the Plaintiff’s right not to be used for profit-making purposes.

③ Unless there exist special circumstances, the Defendants’ unlawful act ought to be deemed to entail the Plaintiff’s emotional distress.

(2) Scope of damages

Considering the overall circumstances revealed in the pleadings, such as the Plaintiff and the Defendants’ occupation, the motive, background, and period of posting the instant pictures (Defendant 1, 53 days, Defendant Company 2 days), and the circumstances after posting, it is reasonable to determine the amount of consolation money to be paid by the Defendants to the Plaintiff as KRW 1 million, and the Defendant Company as KRW 300,000,000.

Therefore, Defendant 1 is obligated to pay damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment, which is the date of this decision, by Defendant 1’s posting the instant pictures on the NABD on June 20, 2015, and the Defendant Company, from August 17, 2015, posted the instant pictures on the NABBD, to the Republic of Korea, to the extent and scope of each of the Defendants’ performance obligations.

2. Determination on the Plaintiff 2’s claim against the Defendant Korea Broadcasting System

A. Facts of recognition

(1) The Plaintiff is an employee belonging to ○○○○○○○○, the Nonparty’s representative attorney-at-law, and the Defendant’s Korea Broadcasting System (hereinafter “Defendant Corporation”) is a broadcasting company that broadcasts “broadcasts” from KS 2TVs.

(2) In order to cover the controversy between the ports that the Nonparty was in an inappropriate relationship with a female blouse, the Defendant Corporation taken a screen image (hereinafter “instant screen image”) without the Plaintiff’s consent, and the Defendant Corporation broadcasted the said screen image through entertainment. In order to cover the controversy, the Nonparty’s office ○○○○○○○ was found. At this point, the Plaintiff’s interview and the following dialogue were recorded, and the Defendant Corporation broadcasted the said screen image through relay.

In the case of the POE contained in the main text: The POE separately speaks about the official position, and whether the POE separately sees about the main room? The plaintiff : NAE, at all, NAE.

(3) In the above broadcast, the Plaintiff’s lower part of the lower part of the Plaintiff’s lower part, which was a short kne-free horse, was aired around 8 seconds, and the Plaintiff’s remarks were aired around 2 seconds without altering the voice.

[Reasons for Recognition] Unsatisfy, Gap evidence 2-1, 2, and 3-1, Gap evidence 3-1, the purport of the whole pleadings

B. Parties’ assertion

(1) The plaintiff's assertion

① The Plaintiff’s portrait, without the Plaintiff’s consent, broadcasted the motion picture of this case, thereby infringing the Plaintiff’s portrait rights.

② The Plaintiff’s honor was damaged by photographing and keeping the motion picture of this case.

③ The Plaintiff’s voice infringed the Plaintiff’s voice right without any alteration.

④ The Plaintiff, as an unmarried female woman, taken video pictures so that the part of the buckbucks and bridges may become more important, and broadcasted them to cause sexual humiliation and destruction.

⑤ Therefore, the Defendant Corporation is obligated to pay each consolation money (one million won for infringement of the portrait right, one million won for defamation, four million won for infringement of the voice right, and four million won for sexual humiliations) from the Plaintiff’s emotional distress.

(2) Defendant Corporation’s assertion

① The motion picture of this case was taken only by the lower half of the Plaintiff’s body, and there was no photographic or broadcast on the Plaintiff’s face and other characteristics identifying the Plaintiff, and thus, it did not infringe the Plaintiff’s portrait right.

② There is no specific statement of fact that may undermine the Plaintiff’s social value or evaluation in the video of this case, and thus, the Plaintiff’s reputation was not undermined.

③ The mere fact that the Plaintiff’s voice was broadcasted as it does not immediately mean it as an unlawful act. The final determination of whether the Defendant’s act of coverage was unlawful by balancing two interests conflicting with the importance of freedom of speech. In light of the background leading up to the film of the instant video, the details and time of the Plaintiff’s speech, etc., the Defendant’s act of coverage falls within a reasonable scope in society, and thus, the Plaintiff’s right of voice was infringed.

④ In full view of the intent of the filmer of the instant motion picture (the body of the instant motion picture taken a bridge inevitably in accordance with the ordinary news reporting practices that take the lower half of the body body in order not to infringe the portrait right), the photographer’s intent (the body of the instant motion picture taken) and the background leading up to shooting, the place and the distance of shooting, the image of the motion picture taken, and whether or not the body part of the given body has been emphasized, etc., in light of the average person’s intent, the photographer and the screen of the instant motion picture cannot be deemed unlawful in terms of ordinary and considerable scope of coverage, and thus, the Plaintiff cannot be deemed to have caused sexual humiliation and the destruction of the body.

⑤ Therefore, there is no obligation to pay consolation money to the Plaintiff.

C. Determination

(1) Determination as to the claim of consolation money due to infringement of portrait rights

Any person shall have a right not to have his/her face and other physical characteristics recognizable as a specific person by social norms or to have a portrait right, i.e., a right not to be used for profit. However, the video of this case only has a half of the Plaintiff’s face and other physical characteristics recognizable as a specific person, and there is no fact of photographing the Plaintiff’s face and other physical characteristics recognizable as a specific person. Thus, the above claim is without merit without further review.

(2) Determination as to the claim of consolation money due to defamation

In order to establish defamation, a specific statement of fact must be made that may undermine the social evaluation of the victim (Supreme Court Decision 2007Da29379 Decided December 27, 2007). The video of this case contains only a simple statement of fact as seen earlier with the Plaintiff and the Defendant Corporation, and there is no statement of specific fact that may undermine the Plaintiff’s social evaluation, and even if it was broadcasted, there is no possibility that defamation against the Plaintiff is not established. Thus, the above claim is without merit.

(3) Determination as to the claim of consolation money due to infringement of voice rights

Every person has the right not to record, reproduce, record, broadcast, or distribute his/her voice without permission against his/her own will, and such voice right is a right belonging to personality rights guaranteed constitutionally by Article 10(1) of the Constitution. Therefore, an act of recording and openly reproducing the contents of conversation without the consent of the recording person constitutes an act of unfairly infringing the voice right guaranteed under Article 10(1) of the Constitution, unless there are other circumstances, such as presumed consent of the recording person or failing to violate social rules.

In light of the above legal principles, in light of the following circumstances revealed in light of the above facts, the above acknowledged facts, and the video of Gap evidence No. 3, even if the defendant Corporation broadcasted the voice without altering the plaintiff's voice after recording it without the plaintiff's consent, it is reasonable to deem that it does not violate social rules, and otherwise, it cannot be viewed as unlawful as infringing the plaintiff's voice right.

① The Plaintiff’s voice contained in the video of the instant case is the entire question of Lagazers questioning whether there is a person to speak in an official position on the controversy over an inappropriate relationship between the Nonparty, the representative attorney of the law firm working for the Plaintiff, and the female blosts.

② As an agent belonging to the Defendant Corporation, a law firm was sought to ask the Nonparty for an official position on the issue of social controversy, but it seems that there was no choice but to ask the Plaintiff, who is an employee of the Defendant Corporation, to speak about the official position.

③ Not only did they have taken photographs of the Plaintiff’s face or other physical characteristics identifying the Plaintiff’s voice, but also the amount of the Plaintiff’s voice emitted is about two seconds. Thus, even if the Plaintiff’s voice was broadcasted as it is, it seems impossible to specify the Plaintiff’s voice.

④ In light of the content of the Plaintiff’s voice contained in the video of this case, it is difficult to deem that the Plaintiff’s voice was a content of conversation that should not be disclosed, and the degree of damage suffered by the Plaintiff cannot be deemed as significant because it was disclosed.

⑤ Ultimately, even if the Plaintiff’s voice was broadcasted as it is, it is reasonable to view it to the extent that it can be acceptable in light of social norms.

(4) Determination on the claim of consolation money due to causes such as sexual humiliation

Whether “the body of another person, which may cause a sexual humiliation or sense of shame” is objectively determined by taking into account whether the body falls under the body that may cause a sexual humiliation or sense of shame from the perspective of the general and average people of the same gender and age group as the victim, as well as the degree of exposure, etc. of the victim in question, as well as the background leading up to the photographer’s intent, the place and location of photographing and the distance of photographing, the image of the photographer’s photograph, and whether a specific body part has emerged (see Supreme Court Decision 2014Do6309, Jul. 24, 2014).

In light of the above legal principles, in light of the following circumstances revealed in light of the above facts, the above acknowledged facts, and Gap evidence No. 3's videos, etc., even if the defendant had taken a short part of the plaintiff's lower body and broadcasted it without the plaintiff's consent, it is difficult to view it as photographing another person's body that may cause a sense of sexual humiliation, etc., and it was not contrary to social rules.

① Unlike the Plaintiff’s assertion, the Defendant Corporation did not have taken the Plaintiff’s bridge part, but appears to have taken the bridge part inevitably according to the ordinary news report practices in order to prevent infringement on the Plaintiff’s portrait rights.

② Even if the part of the Plaintiff’s bridge, which was short of the instant video, is revealed, considering the content and atmosphere of the conversation emitted from the instant video, it is difficult to view that the Plaintiff’s general and average person of gender and age groups, such as the Plaintiff, would have damaged the concept of sexual morality and made him feel a sense of sexual humiliation.

③ Furthermore, in full view of the motive and background of the motion picture of this case, the place, time of photographing, etc., it is reasonable to view that it is within the scope of ordinary and reasonable coverage.

3. Conclusion

Therefore, the plaintiff 1's claim against the defendant 1 and the defendant company shall be accepted within the scope of each above recognition, and the remaining claims shall be dismissed as it is without merit. The plaintiff 2's claim against the defendant corporation shall be dismissed as it is without merit.

Judge Class B: Name of judge

Note 1) It is one form of Mesa data that is made with Mesagle Mesa and specific words, so that specific core points can be conveniently searched from social media, such as Mesagram, Twitter, and Facebook.

2) Although the Plaintiff asserts that the case concerning a criminal case cannot be applied as it is in a civil case seeking compensation for damages, it seems that there is no reason to distinguish between a criminal case and a civil case as to whether the case constitutes a body causing sexual humiliation.