Many of my students and colleagues ask me about the details of the Korean concept of "the right to the face" (초상권) and how it affects photographing people in the streets. In short, most Koreans' understanding of the law is wrong. Many Koreans think that the legal concept of 초상권 means it is illegal to take a person's picture without expressed permission. This is simply not true, and is a popular legal misconception similar to Americans who watch too many cop movies and think that a cop has to admit s/he's a cop if asked directly, meaning that you can simply ask an undercover that question, and if they bust you later, all the evidence is invalid. Sorry -- wrong.
According to the Korean Constitution, all citizens have a "right to privacy" that extends in particular to the "right to one's facial image." Violation of that right to privacy vis a vis publishing someone's face without their expressed permission (e.g. a couple sharing an ice cream cone in the park) is understood to be a "violation of the right to one's facial image" (초상권침해). The public has a very heightened awareness of this legal concept, in the same way that Americans are overly conversant in psychological terms such as "co-dependency" or "anal retentiveness" or a person being a "paranoid schizophrenic." But it doesn't mean a lot of people actually know what those things really mean, in the original terms of the field they come from.
Same with Koreans, who generally don't speak in such highly-specific jargon. So, the fact that people refer to this very, very specific legal concept should be a give that most people actually don't know what they're talking about. The right to privacy is a generally-protected legal right, just like the "right to one's facial image." However, the right to sue someone for damages for violation of said right is a part of CIVIL LAW (민법), where you can recoup damages for all kinds of violations to your person. There is no aspect of CRIMINAL LAW (형법) linked to the right to privacy or the right to one's facial image that says it is actually illegal to take someone's picture.
If damage results from the "printing or reproduction" of a picture, then you can be sued in a civil law case. And even there, according to further explications of that particular subject in civil law, the person has to demonstrate actual specific damages that resulted from the picture being printed. That's the key point -- not only must the case be argued in a civil case, there has to be more to it than just the fact you took the picture -- actual, concrete damages have to be shown to have specifically resulted from the picture you took.
And that almost never happens. Ever.
But the average person's misconception of the "right to the face" is so off that during public performances in a private venue, like a digital film festival I once attended, an irate woman from the audience was forcing a camera guy who had been taking B-roll of audience reaction shots to the performance that she, as a private citizen attending a private event, paid money for a ticket to see. It would be pretty hard, even in Korea, to argue that she had any realistic expectation of her right to privacy being respected when she had voluntarily paid money to get a seat at a private event that involved performaces and cameras. Legally, it's like her actually paying money to come to my private house party, after which she claimed that party's activities harmed her privacy in some way. It's like going to a presidential rally -- an extremely public event -- and accidentally ending up in one of the shots of the President behind the podium, then expecting that one's "privacy" be respected. It's ridiculous, but that's just how warped the misconception of "privacy" is here -- I am not personally or ethically responsible for embarrassing acts that I take into what can be reasonably understood to be a public venue -- a street, park, or public event -- it's the PHOTOGRAPHER.
But actually, the only cases that really go through are ones related to using a person's image for commercial purposes -- but no one reading this is stupid enough to do that, right? That's another issue, for idiots. You should know that taking a picture of a young lady drinking a can of Coke can't be submitted as a stock photo to the Coca-Cola corporation, right? I mean, that's just plain stupid.
But don't get overzealous about things, as if the law is a shield here, because sometimes even cops can misunderstand the law. The 2-3 times it's ever gone to the cops with me, usually when someone says, "I'm calling the cops on you" and I say, "Go right ahead. I'll wait," the cops know better and just tell the person they're in the wrong and for us to go on about our separate ways. But know a few caveats:
-- If someone tells you to stop taking their picture, STOP. Not only are you being a rude asshole, you're HARASSING that person. No means NO, and if they call the cops on you, you might get stuck with a charge like that. Actually, the fact that you're using a camera is incidental -- if you behave in a way that causes a specific person distress and they specifically even asked you to stop, you are gonna get in trouble dude. STOP.
-- There is a new, astonishingly open-ended aspect of sexual harrassment law that basically says that any behavior that results in "embarrassment" to the woman is sexual harrassment. That's too open-ended in my opinion, and too subjective a definition to be a law. But they caught a few people up on that one, although I believe they were all dismissed upon closer inspection. A camera being used to sexually harass isn't any different from any other type of sexual harrassment, I think. If I stick a camera under a woman's dress, lift up her skirt without permission, or put my hand on her breast -- I'm violating a clear line of personal privacy. But now, we've got cases like the Pakistani guys on the beach who were photographing women in their bikinis on the beach (I see racial undertones to this) and we arrested. Or the guy on the bus (a school principal, actually) who took pics of the high school girl's legs sitting across from him. What bothers me in those cases -- whether they are actual "perverts" or not -- is the fact that they were arrested for taking pictures of something visible from a normal angle. This is, to me, a slippery slope, and technically defines a thought-crime. Why is it legal to look at it, but illegal to take a picture of it? And why should it depend on the judgement of some state official to determine your purpose in taking the picture, or someone else's subjective feelings? If I used that camera to peek under a skirt, or drilled a hole in a bathroom stall to get a shot of a woman peeing, this is obviously unreasonable. But this new stipulation is chilling. Tellingly, though, I think no one actually went to full prosecution on these cases.
For further reference, read up on what I've already written on the matter, and at the end, there's a copy of my "Korean Photo Law Card," which you can print up and have at the ready in your own camera bag to explain to any flustered subject what the hell you're doing. In 99% of the cases in which someone even noticed I took their picture, a simple, truthful explanation usually did the trick (i.e. "I'm teaching a photo class" or "I'm taking pictures of fashion trends" or whatnot), combined with a name card and an apology for the misunderstanding. If it escalates, I pull out the photo law card. But I never let another person touch my camera, and I usually refuse to delete pictures on my card.
"A Note about Korean Law and Photography"
"Korean Photo Law, 초상권, and Legal Inexactitude"
"The Politics of Pictures and Privacy"
"On Respect for Photographic Subjects"
And here's both the Word and PDF versions of that card.
