写真の撮影・公表と人権をめぐる判例の展開

抄録

In Japan, the courts have been making rules which deal with the concerns for the right to take or publish photographs of people on the one hand, and the protection of privacies on the other. In the 1950's, the issue arose out of arrests of persons, whose photographs were taken without consent and who protested with violence. They asserted that they had the right not to be photographed. In 1969, the Supreme Court recognized and declared the right fo refuse to be a photograph without consent as the general principle and pointed out some exceptions. In civil cases, publication needs consent as well. The other rules have not come out yet for a long time. However, they have gradually become clear because of redent popularity of photo weekly magazines. In Germany, the problem between the rigrt of privacy and the right to photograph had been discussted at the end of the previous century. And then "das Recht am eigenen Bilde", or the right to one's own picture was created as a kind of copyright law. However, it regulates only publication. Therefore, taking someone's picture without consent is not prohibited. And now it is a source of troubles concernig of privacy and the photograph. At that time in the United States, the problem between the photograph and it's publication was brought forward by the Warrenr Brandeis' argument "The Right to Privacy". Since then, the rules have developed through numerous law suits. The rule in the U. S. is similar to Japanese rule. But ours a little differ from the U. S. rule in that it generally requires consent to take someone's photograph. Our rule, the so-called Third Rule conerning photograph and it's publication, has the purpose of obtaining compromise with the freedom of the Press. Nowadays, problems of photographs arise in many countries. In my view, Japanese rule is effective in dealing with them.