"My Face in a Street Challenge?"…The Standards for Portrait Rights Infringement and How to Respond

When using YouTube or Instagram, you can easily come across videos filmed against the backdrop of busy streets or tourist spots. As the trend of sharing one's daily life through a smartphone has settled into a natural culture, the figures of the countless crowds passing by on the street are also naturally captured.

As an era has arrived in which anyone can easily become a creator, cases of people suffering from being unintentionally caught on someone else's camera are also on the rise. To the person filming, it may be merely part of a passing scene, but to the person concerned, it comes as stress and a clear invasion of privacy. We examine the legal basis for whether one can confidently demand the removal of one's face, captured without permission.

One of the misconceptions video creators most often hold is the thought that "it is not for commercial purposes and no revenue is generated, so it is not portrait rights infringement." To state the conclusion first, this is a false rumor.

The right to the pursuit of happiness guaranteed by Article 10 of our Constitution includes portrait rights. This includes not only the right not to be filmed arbitrarily but also the right not to have the filmed photo or video published arbitrarily. Therefore, even in the case of a personal-keepsake vlog with absolutely no profit motive, if one films another's face in an identifiable state without that person's consent and posts it on the internet where an unspecified many can view it, portrait rights infringement is established by that very act.

First, even for footage filmed without authorization, unless it meets separate crime requirements such as inducing sexual humiliation or defamation, there is no provision that allows criminal punishment for simple portrait rights infringement alone.

However, the fact that criminal punishment is difficult does not mean that civil liability is also exempted. Our courts judge the illegality of portrait rights infringement by comprehensively considering the degree of harm suffered by the victim, the purpose and necessity of the infringing act, and the reasonableness of the method of infringement. In other words, whether the 'tolerance limit'—the limit a person can reasonably endure under social norms—has been exceeded becomes the key criterion dividing illegality.

For example, there are cases of filming at a wide angle to capture the overall scenery and on-site atmosphere at an outdoor festival with a large crowd or at a famous tourist spot. Even if passersby happen to appear in the video, if it is difficult to identify a specific individual or they merely pass by as an extremely small part of the background, there is a strong possibility of viewing it as not having exceeded the tolerance limit. This is because the characteristic of an open place that anyone visits while tolerating, to some degree, the possibility of being observed by others is also taken into account.

However, being an open outdoor space alone does not make one unconditionally free from liability for portrait rights infringement. Even if the face does not appear clearly from the front, if one can be identified by comprehensively considering surrounding circumstances such as body shape, distinctive attire, and companions, one can be included among those protected by portrait rights. In particular, if, during the filming of a dance challenge or vlog video, the camera's focus is continuously fixed on a specific passerby or the individual's figure is exposed to the extent of occupying a significant portion of the screen, it is highly likely to be assessed as having gone beyond the tolerance limit. Furthermore, if the video was posted without editing despite the person concerned taking a gesture of refusal—such as avoiding the camera or waving their hand—there is ample room for it to be recognized as an unlawful act and to incur civil liability for damages.

So what should one do upon discovering that one's face is contained in someone else's video? The first thing to do is to secure objective evidence. Since the poster may, upon receiving a complaint, temporarily take down the video or cleverly modify it, one should capture the internet address of the original video and the screen where one's face is exposed. Recording the date and time the video was posted and the exact time range in which the problematic scene appears is also an essential procedure for a later response.

After that, one can try requesting deletion or mosaic processing directly from the poster through a comment or message. However, if contact cannot be made or the request is refused, rather than forcibly disputing, it is advisable to actively use the customer center of the relevant platform. Most platforms such as YouTube and Instagram have their own community guidelines, so if one reports on grounds of portrait rights and personal information infringement, they operate a system to forcibly set the video to private or delete it after review.

If the platform's cooperation is hard to expect, or the poster persistently keeps re-uploading, one should consider full-fledged legal measures. First, one can quickly block the further dissemination and spread of the video by applying to the court for a provisional injunction to delete the post. Furthermore, if one has suffered severe mental distress or specific harm in daily life due to the unwanted exposure, one can also review the option of claiming civil damages such as alimony through a main lawsuit.

Attorney Kim Ho-jung of Daeryun Law Firm said, "Even in the midst of an ordinary daily life, the possibility of one's figure being captured defenselessly by another's camera lurks everywhere. Those who film and upload videos must possess the minimum digital ethics of applying blur processing so that others' faces, if captured on screen, cannot be identified. Victims suffering from unwanted exposure, too, must now protect their rights through active response within the bounds of the law."

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