표현의 자유와 초상권의 충돌에 관한 소고 - 독일 초상권 법리와 유럽인권법원 Bild GmbH & Co. KG v. Germany 판결을 중심으로 -

초록

In Germany, the conflict of constitutional rights is resolved by using 'balancing' as a consistent standard for resolving the conflicts. However, in Germany, when the right of portrait and freedom of speech conflict, the German Federal Supreme Court and the Federal Constitutional Court resolve the conflict by according to the 'Graded protection principle' based on Articles 22 and 23 of ‘the Copyright (Arts Domain) Act’. This study introduce ‘the Copyright (Arts Domain) Act’ and the portrait right doctrine, ‘the graded protection principle’. The ‘Graded protection principle’ is based on ‘the Copyright (Arts domain) Act’, which states that images can only be disseminated with the express consent of the person concerned, but the images can disseminate when the images portray ‘an aspect of contemporary society’ or does not interfere with a ‘legitimate interests’ of the person concerned. This principle has implications that the German courts protect the portrait right more strongly than other rights by the law. And this study introduce the recent ECHR case 'Bild GmbH & Co. KG v. Germany, no. 9602/18', which dealt with a conflict between the portrait right and freedom of speech. This case involved the conflict between the portrait right and freedom of speech in Germany, and was applied to the ECHR by a German press that published a portrait of a police officer in an online newspaper without his consent. The German courts found that the press violated the policer’s portrait right, but the ECHR found that the German courts violated the press’ right to freedom of speech. The ECHR also found that the German courts’ reasons and balancing process can be justified, but that can’t contribute to the later balancing between portrait right and freedom of speech. So EHCR judged the German courts are violated the press’ freedom of speech. However, balancing under the ‘Graded protection principle’, like the general balancing, is a case-by-case judgment. Furthermore, the accumulation of balancing does not become a rule and create a gradation between the rights. So the EHCR’s decision is not convincing. In other words, EHCR need have found that the German courts had not violated the freedom of speech.

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