Can the Bikini Clad Women at Cheonggyecheon be Punished?

Regarding 초상권침해, whether a person is in a public space or is aware of being photographed has nothing to do with it. Someone at an amusement park can wave into the camera thinking the photographer is an innocuous tourist, but then find their picture in a tourism brochure promoting something they never heard of — their cognizance of being photographed has nothing to do with anything.

And in the end, the issue is fuzzy and open to much legal debate, which is what I think your link pointed out. And at the end of the day, the right to sue you for damages is contained in 민법 (civil law), and the sole legal basis for doing so lies in the fact that their 초상(facial image) has been published. If someone decides to sue a photographer, it doesn’t matter where they are — the right to privacy being given up because of where they are (i.e. a public place) is American law — it doesn’t exist in Korean law that way.

In the end, the right to sue comes from the fundamental right to privacy as explicitly outlined in the Korean constitution, which transmits down through the concept of 초상권 (the right to control the image of one’s face), and place, permission, or any of that doesn’t matter. For example, I could even get permission from someone to take their picture, but then they could sue me later if “harm” (the 침해 or 손해) results to them or they just plain change their mind. In the end, it’s civil law, and they can just sue you if they want. Doesn’t mean they’ll win, but if you took someone’s picture for a news story and they are the focus of a national controversy, especially one that casts them in a negative light, not only would that look pretty much like a slam dunk case of your photograph causing harm to their privacy in Korea, but there’s room to sue in the American case, as well.

For example, you could take a picture of a couple giving their kid an ice cream cone at the local county fair on a Sunday afternoon to accompany a story such as “Local Bostonians Enjoy A Sunny Sunday” and you’d be pretty safe in the States. They were in a public place, no casting in a “negative light” and no commercial use. Clean and simple. But use that same picture, with perhaps a pudgy kid, to run with the story “Are American Parents Feeding Their Kids to Death?” and you’d have a lawsuit on your hands.

And this seems like a pretty clear example of the latter.

Also worth pointing out is the obvious fact that none of them, save perhaps partially the girl on the right, is wearing a “bikini.” So there’s that.

And it looks like the photographer, who probably shot off dozens of shots on his motor drive, picked the one that looked the most innocuous, with their faces showing the least. All of their faces are in profile, and all have sunglasses on, at least in the shot that’s on the main page that I am looking at. As a photographer who’s had to deal with this from my own blogs to Korean newspaper and magazine editors, I can guarantee you that the photographer thought about this. Because the real issue here, were he sued, would be whether their faces are even recognizable enough to constitute something that resulted in specific, concrete, demonstrable harm, which the plaintiff has to show to win anything real, in real life.

So Robert, they can 1) sue all they want, whether seemingly valid a case or not, and 2) actually, I think the girls here would have a case, not only in Korea, but in the US. I’m no lawyer, of course, but from a photographer’s perspective, I’d be worried about not having their permission and running a story that not only is casting them in a negative light, but actively instigating the negativity — they’re not reporting on say, an incident that resulted from them wearing the bikinis, like a fight broke out, people gathered, and it was an organic issue. Then, it’d actually be just reporting the news, and I wouldn’t be worried. But snapping some “bikini”-clad (that’d also be an issue) women and then running a story on “Should They Be Punished?” — I think even the editor of the local fish wrapper gazette in Nowhere, USA would hestitate with that one.

And in the Korean case, their privacy, and how much it was or wasn’t violated in terms of 초상권 is the only issue. Their consent or place is fairly irrelevant, all other things considered.