NHRCK (Chairperson Hyun Byung Chul) has recommended the chief of police station to send a warning to the officer who has posted a photograph, with participants who are identifiable, taken during a demonstration on his Facebook account, a Social Networking Service, which has violated personal rights ensured by Article 10 of the Constitution.
The petitioner (Female, Age 22) has filed a complaint before the NHRCK that her rights have been violated when the respondent posted a photograph of her demonstration on his private Facebook account on 2012. 10. 2. without the consent of the petitioner.
The respondent has answered that there was no intention of defaming one's personality or dignity of protesters. He argued that the photo was taken under the need to gather evidence of the demonstration, and a part of the photo was posted with simple description on Facebook. No remark was made on the identification of people in the photo, and the photo was accessible only to his friends.
Right of Likeness is one element of Personal Rights protected by Article 10 of the Constitution that includes rights to not reveal one's identifiable physical characteristics, including one's face, without consent. Also, the Rules on Evidence Gathering, a Standard Operating Procedure of the Police, prohibits usage of collected evidence for purposes other than investigation and requires termination of evidences without delay once investigative purposes have been fulfilled, in regards to evidences gathered from protest and demonstration sites.
NHRCK has decided that the act of posting the photograph and description of this incident by the respondent amounts to violation of personal rights of the petitioner, protected by Article 10 of the Constitution considering the fact that △the Rules on Evidence Gathering has been violated when the respondent used and disclosed evidential documents for purposes other than investigation by posting some of them on his private Facebook account during the course of carrying out his duties to collect evidence of illegal acts being conducted at the demonstration site; △the petitioner in the picture was identifiable; △comments were posted that agreed to the respondent's negative description of the petitioner's actions caught in the photo; △it is difficult to justify that protesters should accept and tolerate their exposures to others through photographs, including their faces and particular actions, even if the purpose of demonstrations is to reach out to the public or even if the petitioner did not take special actions to prevent exposure when participating in the demonstration.
However, the Commission has recommended the chief of police station with which the respondent is affiliated to send a warning to the respondent, upon consideration that the respondent has deleted the picture and its description in question immediately after receiving complaint from the petitioner; the respondent has conveyed his apologies to the petitioner; and the affiliated police station has conducted training sessions on management of evidential documents to prevent such form of human rights violations from recurring.
