이 논문에서 주로 다루고자하는 주제는 Prosser 교수의 프라이버시 침해의 4가지 유형 중에서 세번째 “사적인 사실을 일반에게 공개(the public disclosure of private facts about the plaintiff)”이다.
이것은 프라이버시를 법적 권리로 처음으로 인식하는 계기를 만들었던 Warren과 Brandeis가 생각해낸 프라이버시권의 침해이고, Prosser 교수의 다른 세 종류의 프라이버시권의 침해유형과는 다르게 프라이버시의 개념으로부터 발생한 고유의 영역이라고 할 수 있다. 이 유형은 영국, 호주, 뉴질랜드 등의 영미법 국가의 프라이버시권에 관한판례의 발전에 많은 기여를 하였다.2) 우리나라판례에서도 가장 많이 발생하고, 가장 전형적인프라이버시권 침해유형이다. 그렇다면 어떠한 요건 하에서 프라이버시권 침해가 인정될 수 있는지, 설령 프라이버시권 침해가 있었더라도 어떠한 경우에 언론은 불법행위책임으로부터 면책될수 있는지, 프라이버시권 침해의 경우에 구제수단이 무엇인지 등에 대한 의문이 있고 정리가 필요할 것이다.
이하에서는 프라이버시권을 하나의 법적 권리로서 처음으로 인식하였던 미국에서의 발전과 상황을 먼저 논의하고, 우리나라의 학설과 판례를살펴보기로 한다
The concept of a tort of invasion of privacy has been initiated and recognized by two lawyers named Warren and Brandeis in the USA in 1890. Professor Prosser classified the concept into four types in 1960, namely, first, 'unreasonable intrusion upon the seclusion of another', second, 'appropriation of another's name or likeness' third, 'public disclosure of private facts', and fourth, 'displaying another in a false light before the public'.
The Court of the USA has acknowledged and recognised the concept of the invasion of privacy by Prosser, which four classifications of the invasion of privacy against the general right to privacy have been adopted into the Restatement (Second) of Torts § 652(1977).
The factor of ‘the disclosure of private fact’ has been recognised by Warren and Brandeis and derived from the fundamental concept of privacy, distinguishing from the other three types of the invasion of privacy. Further, many cases in the USA in relation to the type, namely ‘the public disclosure of private facts about the plaintiff, than the other three types, have hugely contributed to the development of the privacy law around the world as well as the countries like England, Australia and New Zealand.
Whilst in general, the Korean Courts have had a tendancy to consider the cases about whether ‘the public disclosure of private facts about the plaintiff’ constitutes to tortious acts as a kind of cases of defamation or violation of personal rights, however, around the later of the 1990s, in the decision of the 96/ 11327 by the Korean Supreme Court dated 4 September 1998, the Korean Courts distinguished the cases of invasion of privacy from the ones of defamation. It, now, is more likely for the Korean Courts clearly to differentiate and distinguish the invasion of privacy cases from the defamation or interference of personal rights cases though, thereafter, there have still been cases where the Korean Courts have dealt cases of invasion of privacy as cases of defamation or interference of personal rights.
In the above case, it has been acknowledged that ‘the public disclosure of private facts of the plaintiff’ may amount to a tortious act of invasion of privacy, which is similarly recognized as the concurrent requirements set by Commonwealth countries and the USA, namely, first, the existence of facts in respect of which there is a reasonable expectation of privacy and second, publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
Further, as for defences, it does not differ from the principles in the Commonwealth countries or the USA in that privacy should be protected against any interference in private matter unless the matter is subject to ‘the legitimate public interest’.
Although the extent of protection of privacy of public figures may be diminished as their public status increases. they do not automatically lose all rights to privacy. In relation to the rights to the privacy of the public figures, the most important threshold appears to lie in whether there is overarching 'public interest' present in the cases specific, which is quite similar to the requirements in the Commonwealth countries and the USA.
As for remedies in the invasion of privacy cases, they are quite different from those of defamation cases. It, in fact, is impossible for the invasion of privacy cases to be reinstated to the original state as correction notice or similar may incur another risk rather to re-disclose of the private facts than reinstatement. Therefore, reinstatement should not be allowed for the above reason.
An injunction to restrain publication in the face of an alleged interference with privacy will only be available where it is clear, that in an appropriate case an injunction may issue. In most cases damages will be considered an adequate remedy.
Now, the right of privacy has become one of the most important rights to be protected against any interference of privacy. Out of various privacy matters, cases about ‘the disclosure of private facts to the public’ have been frequently heard most before the court. As for this, I wanted to clarify where to locate the invasion of privacy due to the disclosure of private facts in torts law by clarifying the requirements,defences and remedies in relation to the torts in Korean cases. I hope this study may provide some assistance to understand differences between defamation and invasion of privacy, and to clarify the relationship between the privacy types.