Plaintiff 1 and one other (Attorney Choi Young-soo, Counsel for the plaintiff-appellant)

Plaintiff 3 (Attorney Choi Young-soo, Counsel for plaintiff-appellant)

School Foundation, National University and 4 others (Law Firm Dong-dong, Attorneys Choi Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant 6 (Law Firm Lee & Lee, Attorneys Yu Chang-sik et al., Counsel for the defendant-appellant)

may 23, 2007

Seoul Eastern District Court Decision 2005Gahap14302 Delivered on July 7, 2006

1. Of the judgment of the court of first instance, the part against the defendant Korean Broadcasting System and defendant 4, which corresponds to the amount of money ordered to be paid below, shall be revoked.

The above Defendants shall pay each of the plaintiffs 7 million won and 5% interest per annum from December 1, 2005 to July 25, 2007, and 20% interest per annum from the next day to the day of full payment.

2. Of the judgment of the court of first instance, the part against Defendant 1, 2, Co., Ltd., Ltd. and Defendant 6, corresponding to the amount ordered to be paid in addition under the following subparagraphs shall be revoked.

The above defendants shall pay to the defendant Korean Broadcasting System and each of the above plaintiffs 4 million won with 5% interest per annum from December 17, 2005 to July 25, 2007, and 20% interest per annum from the next day to the day of full payment.

3. The remainder of the appeal against the plaintiff 1 and 2 against the defendant Korean Broadcasting System, the defendant 4, the defendant 5 and the defendant 6 and the remaining appeal against the other defendants, the appeal by the plaintiff 3 and the incidental appeal by the defendant 6 are all dismissed.

4. The plaintiffs 1, 2, and the defendant Korean Broadcasting System, the defendant 4, the defendant 4, the defendant 5, and the defendant 6 share the total costs of the lawsuit. The above plaintiffs bear the remainder, and the defendants bear the costs of appeal against the remaining defendants of the plaintiffs 1 and 2. The costs of appeal by the plaintiff 3 are borne by the above plaintiff 4.

5. The portion of money under paragraphs (1) and (2) may be provisionally executed.

1. Purport of claim and appeal

The judgment of the court of first instance is modified as follows. The defendants pay to each plaintiff 1 the amount of KRW 50 million, KRW 25 million to the plaintiff 2, KRW 15 million to the plaintiff 3, and 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff reduced the plaintiff's claim in the trial).

2. Purport of incidental appeal;

Of the judgment of the first instance court, the part against Defendant 6 shall be revoked, and the claims of Plaintiffs 1 and 2 falling under the revoked part shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the following facts: Gap evidence 1-1 to 15, Gap evidence 5-2, Gap evidence 6-1 to 18, Gap evidence 1-2, 3, Eul evidence 11-2, 11-B, Eul evidence 1 and 2, non-party 1's written testimony or video at the court of first instance, and the whole purport of the arguments as a result of the examination by the court of first instance.

A. Status of the parties

(1) On August 2, 2005, Plaintiff 2 given birth to 29 weeks of pregnancy at the National University Hospital (hereinafter “New University Hospital”). The two of them died immediately after birth, and only Plaintiff 1 was alive and was given medical care in the patient’s room for the newborn baby at the above hospital until September 2005. Plaintiff 3 is the husband of Plaintiff 2 and the father of Plaintiff 1.

(2) The Defendant Educational Foundation Foundation Foundation Foundation Foundation (hereinafter “Defendant Foundation Foundation”) is a legal entity operating the Foundation Hospital, and the Defendant 2 is the head of the public relations team at the Foundation. The Defendant Foundation established for the purpose of television broadcasting, etc. (hereinafter “Defendant DBS”) is a legal entity that broadcasts the program “the hospital 24 cc” (hereinafter “the hospital 24 cc”). Defendant 4 is a professional producer at 24 cc. of Defendant DBS’s staff at the hospital. Defendant DBE Co., Ltd. (hereinafter “Defendant DBE”) is a company that produces and sells broadcast programs, etc., and Defendant GBE is a staff member of the hospital at the hospital of Defendant DB, who takes charge of the production and withdrawal of the program “the 1,00 gys of the 1,00 gys-Sys in the instant case” (hereinafter “instant program”).

B. Production process of the instant program

(1) On July 1, 2005, Defendant KFS entered into an external production contract for broadcast programs with the content that the said Defendant’s hospital was to be produced and supplied at KRW 18,264,000 per letter (hereinafter “instant production contract”), and if any of the main parts of the contract is extracted, it is as follows.

(1) The planning of the program shall be determined with prior approval from Defendant KFS, and all matters related to the production shall be implemented through consultation with Defendant KFS (Article 4(2)). Defendant KFS may, from time to time, be present at the production site of Defendant KFS and may check the production status of 24 weeks at the hospital and give necessary instructions (the main sentence of Article 4(3)).

② After completing the production of AlN, Defendant 1 delivered the hospital 24 cc. to Defendant KS and delivered a receipt certificate after the completion of the examination (Article 6(1)). In a case where Defendant 1’s request for correction or supplementation on the part deemed insufficient to implement the content prescribed in Article 4 after the examination, Defendant 1’s AlN must immediately perform it at his responsibility and expense (main sentence of Article 6(5)).

(3) All rights, including domestic and overseas rights, such as broadcasting rights (terrestrial, satellite, wire, mIMs, etc.) to 24 cities in a hospital, shall belong to Defendant KSS (Article 8 (1)).

④ Defendant KBS may directly modify, delete, and otherwise edit, if necessary, while using 24 cc.s. hospital supplied for broadcasting, etc. (Article 10(1)).

⑤ In relation to the production process of the 24th hospital and the 24th hospital after broadcasting, Defendant AlN bears all civil and criminal liability arising from any cause attributable to Defendant AlN (Article 12).

(2) Around September 15, 2005, Defendant 2 heard the awareness that Nonparty 2 was sent to a gymna hospital to give birth of sallls in 7 months of pregnancy. On the following day, Defendant 2 asked Nonparty 2 and sallls, located on the part of A.I.D. hospital, and asked Nonparty 2 and sallls, located on the part of A.I.D. hospital, as appropriate.

(3) Accordingly, Defendant Aenenna decided to produce the instant program under the planning that “The medical professionals of Nonparty 2 and their families and their families with the care of the care for the care of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the two families, and the young couple and the medical center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the care center of the

(4) In the process, Defendant 6 took a part of the instant program, as indicated below, with respect to Plaintiff 1 and 2, and the instant program, which included the pages of the motion picture, was broadcast nationwide through Defendant KBS on October 4, 2005.

(5) The instant program consists of the various circumstances where Nonparty 2 gave birth to three-dimensional baby and where the said baby was experienced in the patient room of the newborn baby and the attitude of Nonparty 2’s life.

C. The background of shooting of the plaintiff 1 and 2 and the contents of the pages of this case

(1) On September 2005, Defendant 6 received the Plaintiff 3’s request from the New Gandong Hospital (hereinafter “Defendant 6”) that “The Plaintiff was given birth of 3rd sons, but the Plaintiff was dead except the Plaintiff 1, but the surrounding circumstances were not taken to be known, the Defendant 6’s motion was given to the Plaintiffs to refrain from taking pictures of other newborns, etc. on the part of the Defendant 6, without obtaining the Plaintiffs’ consent or notifying the Defendant 1 of his name-free nurse’s face. However, the Defendant 6 received the Plaintiff’s consent or without notifying the Defendant 1 of his name-free nurse’s face, and sent it to the other hand (hereinafter “section 1”), and the Plaintiff 1 was missing on the surface of the water (hereinafter “section 2”), and the Plaintiff 2 took the face of the Plaintiff 1 with the Defendant 1’s body without having been exposed to the Plaintiff 1’s face of the water (hereinafter “section 1”).

(2) Chapters 1 and 24 to 30 seconds of the instant program were aired respectively between the two pages, and Chapter 2 to 42 to 53 seconds. At the time of broadcasting, it was inserted with the head of the broadcast, “I am more than twice or more difficult, and the small son, shot, spoke, and spoke, which are at the end of every moment for their survival, shall be in the same manner as the horse’s boat.” Chapter 3 was aired between 44 minutes through 13, 19 through 25, and 31 through 35 seconds of the instant program, and it was difficult to distinguish Plaintiff 1’s Ambassador from Nonparty 2’s Ambassador, “I am 1, spoke, spoke, spoke, spoke, spoke,” and Nonparty 2’s “I am 3, satch.”

2. Whether defamation is defamation

A. The plaintiffs' assertion

The Defendants failed to pay due attention in the course of photographing or broadcasting the instant program, and caused the misunderstanding that Plaintiff 1 was one of the sons of Nonparty 2 and one of the sons of Nonparty 2, and that Plaintiff 2 was voluntarily contributed and postponed. On the other hand, Plaintiff 2 was mistaken that Plaintiff 2 was the son’s children or son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’

Therefore, the defendants are the joint tortfeasor directly and indirectly related to the production and management of the program of this case, which includes the face of this case or the face of the face of this case, and are obligated to pay consolation money for mental suffering suffered by each of the plaintiffs.

B. Determination

Whether a television broadcast report contains any content that damages a specific person’s reputation shall be determined on the basis of a comprehensive consideration of the overall flow of the report, screen composition methods, the ordinary meaning of words used, and the method of linking phrases, etc., on the basis of the objective contents of the report in question and the method of a general viewer’s care (see Supreme Court Decision 2004Da35199, May 12, 2006, etc.).

In this case, the program of this case is composed of the following circumstances: (i) Nonparty 2 gave birth to a pair of sons; (ii) various circumstances where the said sons were experienced in the patient room among the newborn babies; and (iii) Nonparty 2’s living habits of the couple; and (iv) the first page where the Plaintiff 1’s face is covered by one nurse’s hand and the other hand, etc. are 6 seconds; (iv) the broadcast time is more than 11 seconds; and (v) it is difficult to find that the Plaintiff 1 was out of the son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son’s son’s her son’s son’s son’s son’s her.

C. Sub-decision

Therefore, this part of the plaintiffs' claim is without reason to examine it.

3. Whether the portrait right has been infringed

A. As to the plaintiff 1 and 2's claims

(1) Claim against Defendant KBS, A.N., Defendant 4, and 6

㈎ 책임의 발생

Any person has a right not to have his/her face and other physical characteristics recognizable as a specific person by social norms taken, described, or disclosed without permission, and not to be used for profit. Such portrait rights are constitutionally guaranteed by the first sentence of Article 10 of the Constitution of the Republic of Korea (see, e.g., Supreme Court Decision 2004Da16280, Oct. 13, 2006).

However, according to the facts acknowledged earlier, Defendant 6, without the consent of the Plaintiff 2 and 3, was unfairly infringed on the portrait rights of the Plaintiff 1 and 2 by photographing the first and second pages and third pages without the consent of the Plaintiff 2 and 3. Thus, Defendant 6 and Defendant 6, the employer, respectively, are liable to compensate for damages suffered by Plaintiff 1 and 2.

In addition, according to the contents of the production contract of this case, Defendant DBS may participate in the production of 24 cities, such as from time to time in the production site of Defendant ABE, and may request Defendant ABE to revise or supplement any insufficient matters after examining 24 cc of the hospital that completed the production. Since there is the ultimate editing authority for the 24 cc of the hospital as the broadcasting authority or the broadcasting authority for the 24 cc of the hospital, Defendant 4 is a producer of 24 cc of the hospital, and the program of this case is broadcasted through 24 cc of the hospital, it is obligated to pay attention to whether the program of this case infringes upon other's portrait rights (Therefore, Defendant DBS and 4's assertion that the production contract of this case is merely an ordinary contract relationship as provided in the Civil Act, and it is not a tort of Defendant DBE's liability for damages arising from the infringement on the rights of Defendant ABE concerning the production contract of this case, it is nothing more than an internal and internal tort of this case.

㈏ 위법성 조각 여부

1) Defendant AB, Defendant AB, and Defendant 6 asserted that the instant program itself, including the face of Plaintiff AB’s portrait, was unlawful because it is for the public interest, such as the encouragement of childbirth, even if the instant program itself was manufactured and kept for public interest. However, even if the instant program was produced and kept for public interest, in order to achieve that objective, the instant program’s assertion is without merit, in the instant case where: (a) the procedure for seeking the above plaintiffs’ consent in advance is not permissible, and the procedure for taking a certain pen or its portrait that should not be included in the instant program; and (b) there is no urgent urgency to allow it to be allowed in advance; and (c) the instant case is not a public interest of the program with respect to the above plaintiffs, which is not a public figure, and thus, it cannot be said that the illegality of infringement of the portrait rights is denied on the ground of the public interest of the program. Therefore, the above Defendants’ assertion is without merit.

2) Defendant 6 asserted that the illegality of Plaintiff 2 ought to be denied by implied consent at the third page photographing, but there is no evidence to acknowledge this, and the above Defendant’s assertion is without merit.

In other words, Defendant 6 argued that the illegality of the violation of portrait rights against Plaintiff 2, etc. should be avoided because it is difficult to view that Defendant 6 had any negative assessment or negative assessment of the above plaintiffs due to the photographing of the head of this case, which was broadcasted very short on the second half of the instant program, and that the part of Chapter 3 was protruding with the starting line applied by Nonparty 2, and that it was an inevitable part to express the core of the main figures. However, the above Defendant’s assertion is without merit, on the ground that the above assertion, cannot be seen as the violation of portrait rights.

㈐ 책임의 범위

Furthermore, with respect to the amount of consolation money to be paid by the above Defendants, the purpose of the broadcast of this case is to secure public interest, such as that the purpose of the broadcast of this case is to realize the importance of life, and the contents of this case was relatively short time, but the contents of this case also did not contain any negative aspect. However, prior to such shooting, it is reasonable to determine the amount of consolation money as KRW 7 million for plaintiffs 1 and 2, respectively, when considering various circumstances revealed in the pleadings of this case, including the fact that the plaintiff 3 explained the circumstances faced by the plaintiffs 6 who were in charge of the shooting of the head of this case on behalf of the plaintiffs and clearly expressed his intention to refuse the shooting of the head of this case.

㈑ 소결

Therefore, from December 1, 2005 (in the case of Defendant KFS, Defendant 4, and Defendant 6) or from December 17, 2005 (in the case of Defendant 5 U.N. and Defendant 6), it is reasonable to dispute about the existence or scope of the above Defendants’ obligations from July 7, 2006 (in the case of Defendant 50 million won from the day following the judgment of the court of first instance cited in the judgment of the court of first instance as to Defendant 50 million won) or from July 25, 2007 (in the case of Defendant 50 million won from the day after the judgment of the court of first instance as to Defendant 50 million won from the day after the judgment of the court of first instance as to each of the above Plaintiffs 1 and 2, and from July 25, 2007 to the day after the judgment of the court of first instance as to each of the above Defendants 40 million won from the day after the judgment of the court of first instance as to each of first instance.

(2) Claim against Defendant 1, Defendant 2

㈎ 원고 1, 2의 주장

Defendant 2, as the head of the public relations team at the Geung-gu Hospital, had a duty of care to manage and supervise other young children in the care room so that they could not be subject to unauthorized shooting, as long as they had met the duty of care, Defendant 2, as the head of the public relations team at the Geung-gu Hospital, had been responsible for the illegal act as the principal, and Defendant 2, as the employer, should also be held liable for tort.

㈏ 판단

As seen earlier, Defendant 2, etc. provided the subject matter of the instant program and had Defendant 6 et al. cooperate with Defendant 2, etc. to take a scarbs of Nonparty 2’s scarbs in the care of the newborn baby in the care of the newborn baby in the care of the newborn baby in the care center of the new care hospital. However, such circumstance alone is sufficient to actively intervene in and take part in Defendant 6’s individual taking of the photograph of the instant body (it was acknowledged before Defendant 6’s taking of the body of this case) and actively take part in the Defendant 6’s taking of the photograph of the body of this case, and it is difficult to view that the Defendant had a duty to manage and supervise the photographer by checking whether the photographer sought prior consent to the taking of the body of this case, and by preventing the taking of the photograph when the consent was not followed. Accordingly, this part of the claim against Defendant 1, 2, and Defendant 2 is without merit.

B. As to the plaintiff 3's claim

(1) Plaintiff 3’s assertion

Since the Defendants jointly committed tort in violation of the Plaintiffs’ portrait rights and caused Plaintiff 3 to suffer emotional distress, the Defendants are liable to pay consolation money to each of the above Plaintiffs.

(2) Determination

As seen earlier, only the face of the instant program taken by Plaintiffs 1 and 2, and there is no face of Plaintiff 3. Moreover, as seen earlier, the degree of infringement of Plaintiff 1 and 2’s portrait rights cannot be deemed to be significant, and in light of the empirical rule, the above plaintiffs and those who are aware of the relationship between Plaintiff 3 and the above plaintiffs 1 and 3 can also be limited to the limited scope, such as their family and relatives, etc., it is difficult to view that Plaintiff 1 and 2’s portrait rights were infringed, and it is difficult to view that Plaintiff 3 suffered emotional distress beyond several limits, and there is no obvious evidence to acknowledge it otherwise, and therefore, the claim against the Defendants by Plaintiff 3 against the Defendants is without merit.

4. Conclusion

Therefore, the claim of this case against the plaintiffs 1 and 2 is partly accepted within the scope of the above recognition, and the claim against the plaintiffs 1 and 2 and the claim against the defendants against the plaintiffs 1 and 2 and the defendant 3 are all dismissed due to the lack of reasonable grounds. Among the judgment of the court of first instance, the part against the plaintiffs 1 and 2 against the defendant Dac S, 4 and Gaz, and the part against the defendant 6 is partly unfair in accordance with the conclusion. Thus, the part against the above plaintiffs' appeal against the above plaintiffs Dac, defendant 4 against the defendant 5, and defendant 6 against the above plaintiffs Dac, the payment of the above amount against the defendant Dac, defendant 5, and the defendant 6 are ordered to pay the amount additionally recognized by the court of first instance among the above amount, and the remaining part of the judgment of the court of first instance is justifiable. The remaining part of the judgment of the court of first instance is dismissed as there is no ground for appeal against the defendants 6 and the remaining part of the appeal against the defendants.

Judges Cho Jae-jin (Presiding Judge)