[Compensation] Damages awarded to the CEO of an event company who did not delete a video while working despite a request from an employee to resign.

Mr. A signed an employment contract with Mr. B, the CEO of an event company, and has been working for the above company since August 2014, performing duties as an event emcee and dance performer. Mr. B filmed a video of Mr. A performing the above tasks and posted it on an Internet web page. After Mr. A left the company in August 2017, he requested Mr. B to delete the above video several times until November 2021. However, when Mr. B did not delete it, a lawsuit (2022 Gahap 207602) was filed against Mr. B, claiming damages, etc. Mr. B deleted the copy of the complaint around March 27, 2023, when he was served.

Daegu District Court Civil Division 12 (Presiding Judge Chae Seong-ho) acknowledged infringement of portrait rights on October 5 and ruled, "The defendant must pay 3 million won in compensation to the plaintiff, and the defendant must not post the video on an Internet web page."

First, the court said, "Everyone has the right not to have their face or other physical characteristics that identify them as a specific person according to social norms not to be photographed, painted, published, or used for commercial purposes. This right to portrait is a right constitutionally guaranteed by the first sentence of Article 10 of our Constitution. Therefore, it is reasonable to believe that unjust infringement on this constitutes an illegal act, and that the person who has suffered such infringement is subject to mental suffering unless there are special circumstances. (Supreme Court) “See judgment 2010da39277, sentenced on January 27, 2012, etc.”

He continued, "A person who wishes to take or publish a photograph showing another person's face or other physical characteristics that can identify a specific person according to social norms must obtain consent from the person being photographed before taking the photograph. Even if consent to the photograph is obtained, the motive and circumstances for consenting to the photograph, the purpose to be achieved by publishing the photograph, transaction practices, the knowledge, experience and economic status of the person involved, whether the benefits received are balanced, and the relevant information at the time of the photograph were taken." Considering various circumstances, such as whether the method of publicity was foreseeable and whether it is expected that the parties would have made different agreements at the time of consent to photography if they had known such method of publicity, if the person being photographed wishes to make public the information beyond the scope of what is considered acceptable in terms of common sense in society and conventional wisdom at the time of consent to photography, the consent of the person being photographed must also be obtained in this regard,” and “In this case, the fact that consent to taking pictures was obtained from the person being photographed; “The burden of proving that the publication of the taken photo is within the scope permitted by the person being photographed at the time of consent to the photo shoot lies with the person who took the photo or the person who published it (see Supreme Court decision 2021Da219116, delivered on July 21, 2021, etc.).”

The court pointed out, "The defendant claims that there was the plaintiff's explicit or implied consent to the filming and posting of the video, but there is no evidence to acknowledge the plaintiff's explicit consent, and even if the plaintiff implicitly consented to the filming and posting of the video while working as an employee of the defendant, in light of the motive and circumstances of the consent, the content and purpose of use of the video, and the possibility of widespread distribution, it is reasonable to believe that such implicit consent is limited to the period the plaintiff worked as an employee." “It is reasonable to believe that the plaintiff’s portrait rights were violated by using a video of the plaintiff beyond the scope of the plaintiff’s employment contract or by neglecting to delete the previously posted video despite the plaintiff’s request for deletion after the termination of the employment contract. Therefore, we have an obligation to compensate the plaintiff for damages for the mental pain suffered as a result.”

According to the court, even though the plaintiff requested the defendant to delete the video several times after terminating the employment contract with the defendant around August 2017, the defendant did not delete it, and posted the video for more than 5 years and 6 months from around August 2017 until around March 27, 2023, when a copy of the complaint in this case was served. In addition, the defendant appears to have achieved a certain publicity effect by filming and posting the video, but did not separately pay the plaintiff for it.

Mr. A also requested that if Mr. B violates the obligation to prohibit posting of videos, he should pay an indirect compulsory fine of 10 million won per month until the end date of the violation.

However, regarding this, the court said, "It is acknowledged that the defendant filed a business closure report on April 7, 2021, and the evidence submitted by the plaintiff alone is insufficient to believe that the defendant is likely to violate the obligation to prohibit the posting of videos within a short period of time after this judgment is pronounced. Furthermore, if the defendant violates this, the plaintiff may separately apply for indirect coercion. Therefore, in this case, where the probability that the defendant will violate the above obligation has not yet been proven, indirect coercion may be ordered against the defendant. He did not accept it, saying, “It is difficult to see that there is a need for it.”

Daeryun Law Firm represented Mr. A.

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