Cases like this are pissing me off.
Korean cops seem to know the law the least in this society, and leaving vague laws open to the whim and interpretative powers of guys who I wouldn't trust to return a wallet with the money in it still intact (I have found three purses in taxis and on the street and returned them all with cash intact, after I had the police contact the owner's credit card company and arrange to have it picked up in person, after I verbally confirmed the amount of cash I had found in the wallet – they hated that part, which is why I don't trust them as far as I can throw them, and boy, would I like to) does not seem like a good idea.
So here's what I have known since first started taking pictures here – see, I do my homework – and what paranoid citizens, journalists, and even the cops seem to be unable to understand: taking a picture in itself, barring mitigating circumstances, is not a crime. And I've know the law since my ass deplaned here in late 2002.
Here's the relevant text, taken from a book for photojournalists called 한국신문사진인론, or, roughly translated, "Korean Photojournalism Theory." It deals with the tricky question of "초상권/choseungkweon" or "the right to one's (facial) image," which is a concept about which the average Korean citizen holds an inflated, paranoid, and nearly erroneous misconception. From the book, here's the relevant section that talks about the subject as it relates to Korea:
헌법 제10조: "인간으로서의 존엄과 가치를 가지고 행복을 추구할 권리"
헌법 제16조: 모든 국민은 사행활의 침법과 자유를 침해받지 않는다.
형법 제32조 제4항:촉탁에 의한 초상화 또는 이와 유사한 사진 저작물의 경우에는 촉탁자의 동의가 없을 때에는 이를 전시하거나 복제할 수 없다(그러나 형벌 규정을 두지 않음으로써 민법 제750조에 의해 손해배상만 청구할 수 있다.)
현재 한국의 법률상 초상권과 관련돈 판례는 거의 없으며 학문적으로도 관심 밖에 있다. 다만 민법 제750조에 의해 손해배상만 청구할 수 있다고만 결정되었을 뿐, 초상권에 관해 정확한 판례가 없고 다만 외국의 판례를 적용하는 경우가 있으나 그것은 극소수에 불가해 초상권에 대한 법률 제정이 시급하다.
So what I see here are some basic things, and you legal eagles out there, please tell me if any of this is wrong, and/or add to the conversation.
1) According to the 10th and 16th articles of the Korean Constitution, which defines a "right to happiness" and "right to privacy," respectively, as this is expressed in concrete terms in article 32, clause 4 of criminal law, a person entrusted with a picture of someone can't use or reproduce it without one's wishes or according to commercial whims, but "because there are no stipulations for punishments, one can only seek compensatory damages according to clause 750 of civil law," for which you have to show clear and concrete damages to one's person or reputation. That means, you gotta have lost a job, gotten a divorce, or something else o which you can put a dollar (or won) sign.
2) According to the book, since there are almost no actual precedents for seeking damages to "chosangkweon" alone – most of the cases shown in the book that set significant legal precedents were all cases in which individuals' images were used without their permission for commercial purposes – it is "little more than an academic issue."
Well, since the advent of the Internet, "dog poop girl," and the woman in Hongdae who posed in a picture with two white boys and was essentially cyberstalked and threatened, Koreans are worried about their faces in pictures more than ever before.
The funny thing is, pretty much any case that most people chalk up to violations of one's "right to their image" are actually clear violations of their "right to happiness" and/or their "right to privacy." In the case of the woman whose image of her and her poopy pooch were passed all over the Net – along with her home address, telephone number, school, and major – her rights were clearly violated. The same is true of the woman who dared appear in a photograph with foreign vermin.
So, short of using a camera to sexually harass or threaten someone – clearly not really "photographic crimes" anyway, but just harrassment with a camera as the tool of choice – that man with the cellphone in this recent case committed no crime. She had obviously accused her of sexually harassing her with the camera, and after clearing him of that, didn't press charges.
But one thing disturbs me – the only person in this case who committed a crime was the lady in question, when she took his camera phone from the man. I myself have visited a police station to check the above laws and specifically asked, "Does anyone have the right to force you to erase a picture?" Of course not – that is your personal property, until proven otherwise.
"Does anyone have the right to take my camera from me?" The cops replied with a hearty negative, since that would be "강도" robbery and constitutes a crime. The same is true in the US, where a cop does NOT have the right to search you without probable cause, and absolutely cannot take your film nor equipment.
According to common sense, as well as the cops I asked, the same is true here. One case I read about in the US had a mall security guard take a photographer's camera away from him (he doesn't have that right, since he wasn't a cop and wasn't preventing a crime). When the police arrived, the photographer turned out to have the right to be on those private premises (there was a newsworthy event that made the venue temporarily a legal place to shoot freely despite the fact that malls are technically private spaces and can ask you to put your camera away, lest you be accused of trespassing) and the security guard was arrested for theft. Hehe. I love it.
In any case, taking another person's personal property is, cut and dried, illegal. The only person who should be arrested in the end is the woman on the bus. No one has the right to touch me or my property, even according to Korean law. That's the only crime that was clearly committed here.
The other thing that makes me uncomfortable is the fact that the determination of whether or not this was a crime was left up to the keystone kop going through to see what parts of the body he photographed. Whether or not that woman was being sexually harassed should have been determined by his behavior and witnesses present at the time. That is quite a separate issue from the content of the pictures.
Basically, if he wasn't using his phone – or a book, or a laser pointer, or his penis – to harass her in a clearly inappropriate or sexual way (and they determined anyway, that he hadn't been), then no crime has been committed. And the woman should have been arrested for theft. If someone touches my camera, or actually takes it, they're going to feel every bit of legal action I can through their way.
What the problem is that stupid decisions such as this are adding fuel to the paranoia.
For example, I attended the opening program of a film festival – ResFest, actually – and there was a hip-hop group performing there and a couple cameras rolling on them from which I wanted to snag some footage. So I followed the camerawoman upstairs and found an organizer who was talking to a woman who had come up right before me. This was a woman in the audience who was visibly shaking with rage and bright red with anger that cameras were rolling and taking pictures "without the audience's permission." She said she wanted to check the camera and personally see any images of her erased – this, all while the event was still going on.
Personally, I would have told her that she had come to a private venue voluntarily, and at MOST, I would tell her to leave a picture of herself – ha ha – to make sure she didn't get emphasized in the editing. But I would never let nobody force me to erase tape, and I can't believe that these organizers were indulging her paranoid behavior.
If I had put on an event in a private venue, for which there would be a very reasonable expectation that cameras would be rolling to record it, I would have tell her to go fuck herself and have a nice day. Not only was she being commonsensically unreasonable, no crime had been committed against her, although she believed one had been.
In short – crimes involving the "right to the face" don't become crimes until they are published and cause someone specific damages. That's the law. If it's sexual harassment, that is literally a different story. But now, most citizens are going to even more erroneously think that actually taking a picture constitutes a crime.
It does not, even in cases that might be arguably called "sexual harassment." If I stalk someone, invade their personal space, say "shake it for me, baby" or whip out Mr. Happy while taking my shot, the actual picture's not the problem, is it? And since they cleared him of sexual harrassment charges anyway, why are cops warning people to be "careful" with their cameras when 1) the camera's not the problem, and 2) in fact the ajumma in question is the only person who clearly committed a crime?
Even if everyday citizens can't figure this out, the cops should better.
Advice for photographers? Do what I plan to do. I plan to copy the relevant pages in that book. keep a few copies wrapped around my name card with contact information, and if some crazy person wants to make a legal issue out of it even after I explain to them that 1) since s/he clearly has protested against their image being used, I would never use it, anyway 2) you have my contact information and venue of publication to use in a suit against me even if I inexplicably – I would quote them my hourly rate and inform them that I would also seek damages for wasting the hours I would spend going down to a police station.
After giving the person the relevant laws in Korean, your contact information, as well as your promise that you're not going to use their stupid picture anyway, there shouldn't be any trip to the police station.
I recently took a picture of a woman looking quite princessy and interesting walking in front of a neon sign background. Little did I notice that her boyfriend had noticed me take the shot. As I was having a conversation with a friend while waiting for the movie – we were in a CGV – he came up all threatening and asked me if I took a picture. I said I did, because I don't lie, and when he told me to erase it, I told him that I don't erase pictures. He then said – and this is rich – that he was a cop: "난 경찰입니다." At that point, I turned in his direction – because I had been, to this point, been snidely not really looking in his direction because I was pissed he was trying to roll up all hard instead of act like a normal human being, on top of him now talking stupid – and told him that if he were a cop, he should arrest me, and if he were a real cop, he'd know that I hadn't committed any crime (yet), and he didn't have to right to make me hand over shit, even if he did have identification, which he hadn't produced. So right when I was about to go tell him what to go do with himself, my female companion tried to calm the situation down by saying that I wasn't going to put it on the Internet (99.9% of my pictures never get used, and that had been a throwaway shot, anyway) and that I was a real photographer and not going to put it on some weird site – as if a fully-clothed woman in a public place is real titillating stuff, anyway.
Since even his girlfriend seemed to not even care about the pic and had been trying to prevent him from stomping over in my direction in the first place, I was even more irritated, since this was more about his testosterone and not liking me than about any naughty picture. And he probably didn't like the fact that he was being made to look more stupid when I called his ill-conceived bluff (I don't know this aspect of the Korean law, but in most countries, it's a crime to impersonate a police officer). What I should have done was actually call the police and tell them I had been arrested by a man who was claiming he was a police officer and hadn't produced identification – oh, what should I do? But I actually wanted to see the movie I had bought tickets to see, and didn't particularly relish the idea of talking with the idiotic fuzz here for hours under flourescent lights. I just wanted to see the Devil wear her Prada, dammit!
If that guy had been smart, he would have called over a store security guard, who would have likely just removed me from the building, which he would be well within his rights to do – a CGV or a mall is a private place and they have the right to remove whomever they want. I woulda been pissed, but powerless to resist.
Which is the opposite case of when I went to a Carrefour and was freely taking pictures of the staff in clown outfits playing with kids and well-dressed ajummas consuming, consuming, consuming. Fun stuff, and half my pictures were of staff who knew I was taking their pictures. Well, I made the mistake of wandering over to the makeup section and snapping a shot of a particularly interesting stand, which brought down the hammer of literally 6 or 7 large security dudes and two managers.
He said that I wasn't allowed to take pictures in the store. I said, cool, I understand, I'll be on my way now. When caught in a private establishment, they usually warn before ejecting. So if caught, I just stop taking pictures and comply – I'm not taking pictures of anything important enough to get booted for, especially since I'm usually with other people and not there to take pics in the first place.
Well, these guys seemed to know enough of the law to not actually try to take my camera or make me give them my film (this was before I went digital). They're worried about corporate sabotage, not anybody's face. I told them that I understood, I would take no more pictures, and that if we were all done, I had to get going. Well, Asshole Manager #1, who didn't seem to fully understand the law – although I was flying by assumption that Korean criminal law would resemble American law, which is actually a pretty good assumption in most cases – wanted to know where I was from. I said that I was from the United States, I was a researcher and photographer, and that's all your ass needs to know.
He wanted to know where I was from, (meaning "are you working for another company?") he repeated in an insistent tone. Since I caught his gist, I simply said that I was a private photographer and that I wasn't working for nobody. But he kept insisting I tell him something more, at which point I asked very loudly, "Are you a police officer? Are you arresting me?"
TIP: When in a situation and a crowd is gathering in a department store, that's a couple of questions that will bring the situation to an interesting head.
When he said that no one was a cop, and that he wasn't detaining me, I promptly said that I would be leaving then, at which point the overzealous guards made a circle around me and one made a move like he was going to grab me. I was pissed.
"Then why are you preventing me from leaving!?!?!" I yelled very loudly, at which point the manager saw the situation was spinning out into embarrassing zone. He said no one was preventing me from leaving – umm, they were, in fact, doing just that – and wanted to know "where I was from."
I told him that if I committed no crime, and I wasn't being arrested, then he had no legal right to prevent me from leaving, and that *I* would like him to call the police, because now their store was committing a crime. I had answered his question satisfatorily, asked if I had committed any crime, and asked if I was being detained – and had received the answer that I hadn't and wasn't – so I wanted to know why 7 thug rejects who looked like they wanted a piece of me were standing between me and the door.
In the end, my horrified Korean companions came down and explained that I was just a private photographer and wasn't working for any companies or agencies – umm, hadn't I just told him that? – and she defused the situation by being real sweet and flowery with her voice and assuring him I was just an ignorant foreigner who didn't understand the situation.
Well, in fact, I was a stubborn, son-of-a-bitch foreigner who fully understood the situation and the fact that he had no right to do anything to me but kick me out of the store, and my exit was something I was actually trying to expedite. Yet he wanted to get all Dragnet with me, despite the fact that he couldn't arrest me, beat me, or otherwise coerce me to do anything other than tell him to go screw himself.
Yeah, I know, I know. It sounds aggressive and paranoid; but trust me – if you want to be a photographer in Korea, you have to be aggressive and paranoid, since everybody else is. The one time I was very nearly physically assaulted – I shit you not, as this drunk guy who was standing next to me when I was taking a picture of someone totally in the other direction from him, but he heard a shutter *CLICK* and saw me being a foreign man, which is sometimes a no-no in Shinchon (did I ever tell the story of the completely innocent Fulbright kid who was beaten over the head with a folding chair and had to receive a large number of stiches, and he never even saw his attackers?) and after he and his friend cursed my existence for a minute while I walked around the corner, he came at me at a full run with fist cocked back, at which point I had actually gotten into a low crouch and cocked back my camera to use as a weapon in self-defense before his friend literally jumped atop him from behind and brought him to the ground – I hadn't even been taking the guy's picture.
Basically, if you're a photographer in Korea, you're going to run into the paranoids and bozos who think you go to jail if you push the shutter button, or that taking a picture gives them the right to assault you. And rulings like this just add flame to the fire.
And it's a numbers game – you're gonna have a run-in someday, if you're burning through film or memory cards here. I dare say that you're not a real photographer unless you've faced the wrath of some paranoid person who thinks that you taking their picture automatically means that you have violated their rights, or that you have to pay a "model fee" to them (this actually happens, I swear).
I'm usually polite, but prepared. But if someone wants to get igg'nant, you're advised to have your laws in your pocket, quick verbal and physical reflexes, a thick skin, and a plan as to which side of your camera grip is best used as a clubbing weapon in a pinch.
I may be oversensitive as a photographer, but who wouldn't be in a country this paranoid about photography, but with such vague and misunderstood laws surrounding it?
In the end, the only thing that suffers here is freedom of artistic expression, the will to document, and good journalism, while the idiots who really abuse the rights of their fellow citizens continue to sully the craft in our name.
People ask me all the time – "Isn't what you do illegal? Did you ask for permission?" I ask, did Cartier-Bresson ask for permission? Did Winogrand? Did any great photographer who worked the streets? I'm not saying I'm them, but I am saying that in an atmosphere like this, it's not wonder the only good Korean photo-documentarians since the great Kim Ki Chan passed a couple years ago are all dead.
Depressing, but true. Which explains why most of the Korean contemporary photographers these days are either nervous journalists who pose their shots anyway, or self-obssessed, self-described "art photographers" who shoot flower bulbs or black-and-white pictures of thatched-roof huts in the countryside surrounded by clichéd dead trees.
No wonder street photography doesn't exist in Korea as a genre – who could put up with the grief?
If even the police and journalists are too stupid to be able to tease photography apart from real criminal activity, how can we expect everyday Korean citizens to?
And that's the triple truth, Ruth.