[1] Whether it is justified by deeming that an unjust infringement of privacy, freedom, or portraits, which constitutes a tort, was conducted at a public place or for the purpose of collecting evidence of a civil lawsuit (negative)

[2] The requirements for the exclusion of illegality of disclosure of matters related to privacy, and the elements to be considered in determining the illegality of infringement of portrait rights or privacy, and the burden of proof on the exclusion of illegality

[3] In a case where Gap corporation et al. made a report by describing the appearance of Eul et al. and Eul et al. without Eul's consent and carrying pictures of Eul et al. without permission, the case holding that Gap corporation et al. is liable to compensate for mental damage suffered by Eul et al. as joint tortfeasor

[1] In full view of the provisions of the first sentence of Article 10 of the Constitution, Articles 17, 21(4), 316, and 317 of the Criminal Act, a person has a legal interest not to be disclosed to others without permission. Thus, a person’s privacy should be protected as a secret unless it is subject to legitimate public interest in relation to the public interest. Moreover, a person has a right not to have his/her face and other physical characteristics recognizable as a specific person by social norms, such right is constitutional guaranteed by Article 10(1) of the Constitution. Accordingly, an unjust infringement of the privacy, freedom, or portrait rights constitutes a tort, and the infringement is not justified solely on the ground that it was conducted at a public place or it was conducted for the purpose of collecting evidence for civil procedure.

[2] Even if disclosure of matters related to private life constitutes a matter of public interest in relation to public interests, disclosure is for the public interest, and the contents and methods of expression are not unreasonable. In a case where two different directions conflict over infringement of portrait rights or privacy, the illegality of the infringement is determined through a balancing of interests, which comprehensively takes into account the circumstances in a specific case. In the course of these balancing of interests, first, the factors that are considered in the sphere of infringement include the contents and importance of the benefits to be achieved by the infringement, necessity and effectiveness of the infringement, supplementaryness and urgency of the infringement, and reasonableness of the method of infringement. Second, the factors that are considered in the sphere of the damaged interest include the content and importance of the damaged law interest, the degree of damage suffered by the victim caused by the infringement, and the protection value of the damaged interest. On the other hand, a person who asserts that the act of infringing rights constitutes a tort should prove that it is not unlawful.

[3] In a case where Gap corporation et al. described a field of private life of Eul et al., Eul et al. without Byung's consent in detail, and published pictures of Eul et al. without permission, the case holding that Gap et al. infringed Eul et al.'s privacy, freedom, and portrait rights of Eul et al. through the above report, and thus Eul et al. is liable to compensate for mental damage suffered by Eul et al. as joint tortfeasor

[1] Articles 10, 17, and 21(4) of the Constitution of the Republic of Korea; Articles 316 and 317 of the Criminal Act; Article 750 of the Civil Act / [2] Articles 10, 17, and 21(4) of the Constitution of the Republic of Korea; Articles 316 and 317 of the Criminal Act; Article 750 of the Civil Act / [3] Articles 10, 17, and 21(4) of the Constitution of the Republic of Korea; Articles 316 and 317 of the Criminal Act; Article 750 of the Civil Act

[1] [2] Supreme Court Decision 2004Da16280 Decided October 13, 2006 (Gong2006Ha, 1897) / [1] Supreme Court Decision 96Da11327 Decided September 4, 1998 (Gong1998Ha, 2377), Supreme Court Decision 2010Da39277 Decided January 27, 2012 / [2] Supreme Court Decision 2007Da71 Decided September 10, 2009 (Gong2009Ha, 1615)

Plaintiff 1 and one other (Law Firm LLC, Attorneys Choi Jong-he et al., Counsel for the plaintiff-appellant)

Digital News Group Co., Ltd. and six others (Law Firm Han & Han, Attorneys Noh Jeong-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na89080 decided March 9, 2012

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the ground of appeal on the establishment of liability for damages

A. Relevant legal principles

(1) The first sentence of Article 10 of the Constitution provides, “All citizens shall have dignity and value as human beings and have the right to pursue happiness.” Article 17 of the Constitution provides, “No citizen shall infringe on any privacy and any freedom of privacy.” Articles 17 and 21(4) of the Constitution provides, “press and publishing shall not infringe another person’s honor or rights, or public morals or social ethics. When the press and publishing infringes on another person’s honor or rights, a victim may claim compensation for damages.” Articles 316 and 317 of the Criminal Act provide, “The act infringing on or divulging a certain person’s privacy may be punished for the purpose of protecting the privacy and peace of an individual. In full view of these provisions, a person has a legal interest in not being disclosed to another person without permission. Accordingly, the matters pertaining to an individual’s privacy should be protected as a secret unless it is related to the understanding of public interest.

In addition, anyone has the right not to be taken, taken or published without permission, or used for profit on his/her face and other physical characteristics recognizable as a specific person by social norms. Such portrait rights are constitutional rights guaranteed by the first sentence of Article 10 of the Constitution.

Therefore, unfair infringement of privacy or portrait rights constitutes a tort, and the infringement is not justified solely on the ground that it was conducted at a public place or conducted for the purpose of collecting evidence of civil procedure (see, e.g., Supreme Court Decisions 96Da11327, Sept. 4, 1998; 2004Da16280, Oct. 13, 2006; 2010Da39277, Jan. 27, 2012).

(2) Even if disclosure of an individual’s privacy-related matters constitutes a matter of public interest in relation to the public’s understanding of privacy, such disclosure is for the public interest, and the content and method of expression are not unreasonable, illegality may be avoided. In a case where there conflict of interests between two directions surrounding the act of infringement of portrait rights or privacy, the final illegality of the act of infringement may be determined through balancing interests by comprehensively taking into account the circumstances in a specific case. In the course of these balancing of interests, first, the factors to be considered within the sphere of the act of infringement include the content and importance of the profit to be achieved, the necessity and effectiveness of the act of infringement, supplementaryness and urgency of the act of infringement, and the reasonableness of the method of infringement. Second, the factors to be considered within the sphere of the damaged interest include the content, importance and importance of the damaged legal interest, and the protection value of the damaged interest. On the other hand, the victim’s act of infringing upon the protection area of rights is not unlawful (see, e.g., Supreme Court Decision 2006Da1684, Mar. 16, 20007).

B. Determination

The court below acknowledged the facts as stated in its adopted evidence. The defendants, without the plaintiffs' consent, describe the following facts: the amount of the plaintiffs' privacy belongs to the upper part of the newspaper Nos. 2 and 5 of this case and the photo Nos. 2 and 1 of the plaintiff 2 of this case without the plaintiffs' consent; they infringed the plaintiffs' privacy and freedom by carrying the report of this case without the plaintiffs' consent; and they infringed their portrait rights by photographing the face without the plaintiffs 2 of this case without the plaintiffs 2' consent; thus, the defendants are liable to compensate for mental damage suffered by the plaintiffs as joint tortfeasor. Further, the court below determined that the report of this case Nos. 2 and 5 of this case, except the photo Nos. 2 and 5 of this case, which appeared in the detailed private life scene of the plaintiff 1 of this case, can be deemed to have been published in a considerable way in the private life area of the plaintiffs, which is subject to legitimate interest of the public; thus, even if this infringed the plaintiffs' privacy and freedom, the defendants' act of disclosure and disclosure of the plaintiffs' portrait rights of this case No. 25 of this case.

Examining the record in light of the aforementioned legal principles, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on privacy, freedom of press coverage and report, portrait right, illegality of coverage method, etc., which affected the conclusion of the judgment.

2. As to the ground of appeal on the scope of damages

Unless there are special circumstances, it is reasonable to view that a person who has suffered infringement of privacy or portrait rights suffers from mental suffering, and on the other hand, a fact-finding court may determine the amount of consolation money for mental suffering suffered by a tort at its discretion, taking into account various circumstances (see, e.g., Supreme Court Decisions 2002Da43165, Nov. 26, 2002; 2010Da39277, Jan. 27, 2012).

The lower court determined the amount of consolation money to the Plaintiffs, taking into account various circumstances shown in the argument of the instant case, such as the details of the instant report, the method of coverage and publication of the news article, the content of the published article, the weight of the photograph, the Plaintiffs’ social status, the period during which each of the instant news article was published, and the degree of limitation on the Plaintiffs’ behavior due to the instant news report.

Upon examining the records in light of the above legal principles, the court below is justified in determining the amount of consolation money as above, and there is no error in the misapprehension of legal principles as to the calculation of consolation money as alleged in the grounds of appeal

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)