I decided on this series of blogs, because I love my fellow fans, and I want to help keep you out of trouble.
I've been reading countless of Korean law codes and researching for a few months now, because I had questions about the legality of certain parts of being an fans, and about where I stand in terms of Korean law.
I write this to help others, to help you, make informed decisions as fans!
My hope for the K-pop fandom is always that we can rise above the norm and set a positive example for others to follow.
Something being against the law doesn’t always mean that someone goes to jail for doing it or has to pay fines and damages.
Every driver who takes a red light doesn’t get pulled to court, neither does every person who pirates music, but both are still illegal.
The people who do those things know that they're against the law, my hope is to give Army the same opportunity to understand the law.
Doing something against the law doesn't necessarily mean having committed a crime, but it means that you are in danger of being detained or having to pay damages or otherwise have to face consequences as a result of your actions. But more importantly, it means that you have likely hurt someone else. So it is always best to be safe and stay within the legal bounds.
In the cases I shall discuss here, the people who get hurt are BigHit, BTS, and Army.
All of them are people we want to protect.
I shall use BTS and Army as examples here, but this applies to ALL FANDOMS and I hope that you will read it with that in mind. This applies no matter the group and fandom.
What I shall discuss here concerns parts of the South Korean law that relates to BTS and Army (not news reporters or BigHit staff, but Army). What I shall discuss are part of the law that I’ve seen many Army cross, most (I hope) not even realizing that what they’re doing is against the law and is potentially hurting BTS.
And you may think that these things don’t apply to you since you aren’t South Korean and that these things are legal in your country… First: I doubt all of this is legal in your country, and I’d really look into that, and second: BTS are still Korean entertainers so my concern is what applies to them and fans who come in contact with them.
It'll be divided in two blog posts. So, let me begin part one, with a title that may shock you:
Taking photos of BTS can be against the law?
It can be.
In the case of BTS, it isn’t always, for regular Korean people, it often is. It's not a crime, but you do run a risk if you use or upload a photo of South Koreans without the approval of the people visible in the photo.
If you have Korean friends, you’ve probably seen that their holiday photos often look like this photo of Jimin.
Everyone’s faces in the background is blurred out if they’re close enough to the camera to easily be identified.
This is because of the Rights of Portrait in Korean law.
Article 750 of the Civil Law of South Korea details the “Rights of Portrait” (초상권). The right to portrait is a legal personal right in South Korea that means that each person has the right to their own portrait (a portrait meaning a photographic representation of themselves).
If someone’s portrait is being used (uploaded online, or sold) without their permission, the person whose portrait has been used may claim damages.
This is usually an infringement the Rights to Publicity, which is closely related to the Rights of Portrait. But that is something I shall discuss more closely in part 2 of this blog series (merchandise). Here, in part 1, we will focus on Rights and legality concerning the act of taking and uploading photos.
There has to be damages caused by the photograph for a victim to sue, though.
Often there isn't any damage from a simple photo, unless it is sold, or used for commercial benefit. So if the photo is just uploaded online…?
Well, in such a case, you CAN still be sued by someone in the photo. Most likely you won't be, but you can be.
Say for example: in the background of your holiday photograph is a young man and a woman, hugging each other. The man is clearly identifiable from the photo, and he is married to someone who is not the woman in your photograph. Say that his wife happens to see your photo and decides that she can’t trust her husband, thinking that he cheated. No matter how much her husband explains that the woman in the photograph was a childhood friend he had thought was dead until that moment, his wife doesn’t believe him and decides to divorce him.
You, having posted the photo online, would be liable to a lawsuit from the recently divorced man.
There are less K-drama like examples too, but I think this proves the point.
To be safe, here is the core of the Right of Portrait:
The Right of Portrait is the right to be photographed and also the right to NOT be photographed.
A portrait or photograph in this case encompasses any physical feature that may identify the person, so for example V’s elephant moles, or Jimin’s small hands.
But BTS are celebrities, so the situation is a little trickier…
In 1995, a judge decreed that a person who is a public figure should give some lenience as to their Right of Portrait, for their photograph to be used in places such as in Newspapers, for example.
(Otherwise imagine the chaos for writing news articles, and the chaos if everyone at a red carpet event had to give their explicit permission every time their photo was taken)
But...
If the usage of the photograph, or the photograph itself infracts upon the celebrity’s honour, or in any way goes against Article 10 of the Constitution, even a celebrity may claim damages.
Article 10 of the South Korean Constitution is very closely linked to the Right of Portrait and it is why that particular Right is such a huge deal to South Koreans. Article 10 of the Constitution states:
“All citizens have a right to happiness and dignity as Human Beings.”
Short summary: You do not mess with a South Korean’s dignity or honour.
Let's take a look at a few simple photographing cases that may happen to Army.
CASE 1
Army A walks down the street, and spots a BTS member on the street. Army A snaps a photo of the member and uploads the photo to their social media.
You know what part of the law Army A overstepped, right?
Yep! It's the Rights of Portrait. Army A doesn't have permission to take a photo and much less to upload it.
And you may now say: "oh but we learnt about the Right of Portrait, but we also learnt that celebrities need to be lenient." And yes, this is true, but according to precedent, lenient only means that general media need to be able to report their news without worrying about getting sued for using a celebrity's photo.
Most likely you won't be sued (and we will get to the why of that) and nothing will come of a lawsuit like that.
The question is always: what sort of damages may they file for?
The BTS member would need to prove that they have lost something as a result of you uploading the photo in order to claim damages.
Mental instability as a result of being followed and added stress is a possibility, even if it's extremely difficult to argue in court.
Suing for something like this is more of a statement to end the behaviour than to actually win the lawsuit, though, so it being difficult to argue in court is actually pretty irrelevant.
Besides: it's not nice to upload a photo of anyone without asking their permission.
If you do it with a friend, they can ask you to take it down privately, if they don't like it, but a celebrity you randomly meet doesn't have that opportunity.
Most likely, you won't be sued for uploading such a photo, but the point is: you CAN be.
But then what if....
CASE 2
Army B walks down the street, and also spots a BTS member on the street. Army B snaps a photo of the member but doesn’t upload it online.
Congratulations Army B, you are not opening yourself up to a lawsuit, so you have understood the general lesson.
However, although the photo isn't put online, Army B is still being rude, and it’s a sneaky way to get around the law.
The law of Right of Portrait state that someone has the right to NOT be photographed, so even if you don’t upload the photograph, it’s still an infringement of that Article.
The victim (the BTS member, in this case) just can’t file for damages.
Unless - there are security cameras proving that Army B has overstepped other parts of the law merely to take the photo.
What other parts of the law may Army B have overstepped to take the photo?
There are many and they often get overstepped by fans in the sort of situations we often see at airports, for example. They are easier to explain in context though, so I suggest that we look at a few more cases that concern Army and see what is legal and what isn’t and why.
CASE 3
Person A is in the airport, waiting for BTS to arrive since BTS flying out for their Tour today. Person A stands in the middle of a huge crowd of fans loudly singing songs as they wait for BTS. BTS arrive and Person A is filming them. At one point a BTS member makes a dismayed expression. Person A goes home and uploads the video to YouTube. The BTS member's dismayed expression goes viral, gets taken out of context and labels the member as being rude to fans.
Did Person A do anything against the law?
Try to guess how many legal infractions Person A committed. I can already tell you that it’s more than one.
(There is a bit of a hint in the gif)
Person A infringes upon BTS's Right of Portrait, which we have discussed above.
Just as importantly, they also infringe upon the Right of Portrait of any fans identifiable in the video!
Second is another one we looked at above: Article 10 of the Korean Constitution, which states that every citizen has a right to happiness and dignity as human beings. The video showing them in a more than uncomfortable situation, and the act of filming it, is technically to infringe upon BTS's dignity. BigHit have released statements that prohibits this behaviour, and states what sort of damages BTS experience as a result.
Third, did you notice the sentence that said that the fans were singing loudly before BTS arrived?
That's what we call Disorderly Conduct (인근 소란 죄) more precisely called the crime of being loud.
To sing too loudly constitues a crime and can get you detained according to Article 3 of the Misdemeanour Punishment Law. It's especially important at a place such as an airport where information needs to be relayed via audio systems, and order and quiet is needed for safety.
Fourth, is a nice little article (translation: horrible - stay clear) called Defamation (명예훼죄).
Defamation is a serious Crime that can land you imprisoned for up to two years.
It is the act of damaging someone's honour or reputation. And a dismayed expression in a crowd of fans taken out of context sort of applies. The person who uploaded the video can get into trouble, even if that wasn't their intention, and it's probably best for them to take down the video and stay safe.
Defamation is also why it's against the law to spread rumours about other people, be it celebrities or regular civilians. South Korea has some of the worst laws on Defamation, and we will talk more about it in part two of this legal blog series. In short: the nastiest cases I've ever witnessed are defamation suits, so I advice some caution.
The last one, the fifth infringement, is another one from the Constitution. Article 17:
"No Citizen shall be infringed upon their Right to Confidentiality
and Freedom of Privacy."
How did all of these fans know that BTS would be flying out today?
We aren't told in the example, but the only legal way for them to know is if BTS told them directly. Any other way; someone working at a news station and letting it slip, an airport staff, or a friend telling another friend, etc. infringes upon Article 17 of the Constitution.
Sometimes BigHit lets news stations know to gain some media coverage, but not fans. So it's still against the law for a fan to show up after receiving intel from her friend at the news station.
It's fun playing lawyers, so let's take another case.
CASE 4
Person B is at the airport to travel. There is a huge crowd of people. Person B realizes that the people are at the airport because of BTS. Person B is an Army, and pushes people out of her way to get close to BTS, flailing her camera-phone and snapping photos. Person B cherishes the moment of seeing BTS and keeps the photos for herself.
Rights of Portrait doesn't apply here, since the photos weren’t uploaded, although again - taking them is still an infringement, BTS just can't file for any damages so Person B is safe as far as the law is concerned.
But what we have here is a lot more serious.
Person B has committed a crime.
To push someone constitues a Crime of Assault (폭행죄) and often leads to a Crime of Injury (상해죄).
Both are punishable by law and can result in two years in prison and 5 million won in fines.
In the case of a Crime of Assault, the victim (the person who was pushed) has to file a lawsuit, but if someone gets injured, it's an automatic charge, no matter the wishes of the victim or intent of the assaulter. This is a serious issue, so be safe, Army, and stay clear from any situation like this.
Don't push or hit other people. Don't join mobs, as that's what happens in there. The mobs are the lawless Wild West and no one knows who hit who so the law might not even protect you, or BTS, or anyone else.
Last one...
CASE 5
Person C has received credible information from their friend who works at a News Channel that BTS will fly from Incheon at 11:14am. They place themselves at a respectful distance from the doors and prep their nice big camera and wait. Soon after, BTS pushes through the mob wearing hats, sunglasses and face masks. Person C snaps their photos from a distance, never approaching. Person C goes home and edits the photos and then uploads them on their website, where Person C always uploads their photos of BTS.
Even if Person C is outside of the mob, other parts of the law that we have seen are still being crossed.
First is the very obvious Rights of Portrait and Article 10 (dignity and happiness). BTS are said to be covering themselves up, which is an obvious way to indicate that permission to take photos is NOT granted.
But BTS and BigHit would still need to be prove damages in order to sue.
Next, Person C got information of BTS arrival times from their friend at a News Channel, which goes against Article 17 (Right to Confidentiality and Privacy) of the Constitution, and is also a violation of the Use and Protection of Location Information Act.
Finally we are told that Person C uploads their photos to a website where they also upload other photos they've taken of BTS in such a situation. That, ladies and gentlemen, is an indication of Persistent Harassment (지속적인 괴롭힘), which is a punishable crime.
Following someone on more than two occasions is a Crime referred to as Persistent Harassment.
Photos in Airports.
All of these people (Person A, Person B, and Person C) are most likely taking photos and recording videos in places where they are not even allowed to do so.
In Seoul, South Korea, there are two airports: Gimpo and Incheon. Gimpo mostly fly locally, so when going to Jeju Island, for example. Gimpo is also a military base and hence photography is entirely prohibited.
But BTS mostly fly from Incheon, which is where most international flights fly out from. Incheon is not, technically speaking, a military airport, hence the same restrictions about photography don’t apply legally. However, Incheon state on their website that you have to apply for a special photographer pass in order to be allowed to take photos on their premises (inside the airport).
What fans and photographers usually argue, is that the arrival halls aren't private, since they're accessible directly from the street, and that, hence, it must be a public space, which is iffy territory. However, according to that logic everything from our examples still applies, such as Disorderly Conduct and Crime of Assault.
And the law is still being ignored.
International Airports
Every airport is different. Some are private in which case photography is often entirely prohibited. Others are public spaces in which Disorderly Conduct usually applies regardless of country (I have yet to come across a law text in which it does not, it’s usually part of the Constitution and it’s the reason why the police can be called if people are making a havoc in the streets).
So, regardless of country, looking at how the law generally is, my advice is always:
Do no disturb others, be it travelers, or airport staff, or pedestrians, or BTS.
Second: Do no disturb BTS at unofficial venues. Doing so is against the law and can get you forcibly removed, or if you're very unlucky, even dragged to court.
Besides it is not very nice for the members. I strongly suggest that you read this post to get an idea of what it is like for them. BigHit also prohibits it, stating that these sort of airport situations put BTS under serious stress and place them in a weak mental state (Pt.1 and Pt.2).
You can meet and see BTS and other celebrities completely legally at official venues such as concerts, performances, events, fansign and fan meetings.
Reposting Photos
While it can be illegal to take photos, depending on circumstance, and to upload them, reposting these sort of photos is a different matter.
Legally, uploading these photos can be against the law, but reposting does not get you in trouble.
Reposting them is a question of morals. It is not illegal!
Reposting such photos does however support the people who commit these infractions and who ignore the law.
Hence, arguably, making it seem like less of an infraction and contributes to making it seem okay for the law to be broken.
But if all of this behaviour is against the law why don’t BigHit just sue?
You might be asking, and it’s a very good question.
As for the answer: the world is not such a simple place.
It’s a lot like music piracy. If they pulled everyone who pirated music off the street, there would hardly be anyone left. And they would have to go through expensive trials, and thousands of people would have to wait their turn in jail. There isn’t enough jails for that. No money to fund such trials either, and that’s just the very tip of the Iceberg of problems.
This situation with BTS is similar. There are too many people doing these things, so it has spun out of control. In some places, police officers are called in to control the crowd, and keep the peace, but even they fail to take proper action. Realistically they can’t arrest hundreds of people for an infraction like this every time it happens, and they aren't allowed to either.
Since most of the infringements are a matter of Civil Law, arrests cannot happen on the spot, and can only happen with a warrant, which can only be requested in court, after the events have happened and with the contact informations of the people involved.
Wonder why when you occasionally see a photo of those people with their big fancy cameras, they almost always entirely cover their faces with masks and hats?
If they can't be identified, they can’t be called to court for being there.
Except… although they hide behind usernames, cyber laws in South Korea do not give as much freedom as such laws often pretend to do in the West.
For example: it is perfectly possible to be pulled to court in South Korea from writing malicious comments on an article.
For BTS and BigHit, though, it’s a lot worse than the numbers not being in their favour.
For an artist (or their company) to take legal action against a fan could result in a serious blow to their reputation.
Regardless of the conditions, it’s a very tricky thing for an artist to sue a fan. Besides such cases are very difficult to argue in court for celebrities, which means that they most likely won't come out victorious. So they don’t have much that they can do other than close their eyes, pull on their masks, pull down their hats and hope for the best.
Even when idols get injured by mobs of enthusiastic fans, which constitutes a Crime of Injury, where the assaulter HAS to be punished no matter if the victim wishes to pursue or not, usually nothing ever happens.
It’s nearly impossible to say exactly whose fault it is when there is a mob of hundreds of people, and police can’t arrest them all because there isn’t the police-force for it, nor the jail space, nor the warrants (do I really need to go on?).
Since immediate action cannot be taken at places like airports, this is behavior against the law that continues to go on.
But while BigHit have not yet taken legal action, this far from means that they won’t. When BTS travelled to the US for the BBMA’s, BigHit released a statement saying that they’re ready to protect BTS, and asking Armys to follow the law.
If anything this shows their resolve to change this culture. So it is very possible that they may someday begin to file lawsuits and pull people to court, even if the lawsuits will likely end in a loss on their side. Simply to make a loud statement and an example out of someone.
While BigHit cannot sue everyone who oversteps the law, they can make an example by suing a few people and thereby show their resolve.
Don’t open yourself up to be that unlucky one.
Stay Safe, Army.
Know the law, protect yourself and protect BTS.
That concludes part one of: "Learn the Korean law with BTS"
Part two : Merchandise, fanart, fan fiction and gifs
Read More :
Love Your Bias Not Everything They Do
We talk about what Military Enlistment means and what it might mean for BTS
Why the B-Free Controversy is my Favourite BTS Moment
That controversy made me a Suga stan, and here is why…
References:
All articles of the Korean law were read and verified on : http://www.law.go.kr
The Korean Constitution (Article 10 and 17); Criminal Law (Articles 259, 260, 307, 308, 309, 310 and 311); Civil Law (Articles 750 and 751); Misdemeanour and Punishment Law (Article 3); Protection of Information Act (Article 44 and 70); Location Information Act (Article 15); Personal Information Act (General reference); Protection Rights in Information and Communication Network (Articles 44 7th Amendment, and 74)
Other references:
BigHit's early fanclub warning
Understanding the Right of Portrait
Understanding the legality of Korean honour and defamation
Incheon Airport photography rules
Why Entertainment companies rarely take legal action
Please keep in mind that I am not a Korean lawyer. I have done this research purely for myself and wish to share it here with you.