[edit] Supreme Court Decision 2002Do123 delivered on October 8, 2002 [Violation of the Protection of Communication Secrets Act]

【Main Issues】

Whether the act of recording a phone call between two parties with only one party's consent constitutes a 'tapping of electric telecommunication' as provided in Article 3 Paragraph 1 of the Protection of Communication Secrets Act (affirmative)

【Summary of Decision】

The old Protection of Communication Secrets Act(amended by Act No. 6546 of December 29, 2001) classifies the objects of the regulation into communication and conversation. Communication is again divided into mail and electric telecommunication. Article 2 Paragraph 3 of the Act defines the term 'electronic telecommunication' as transmission or reception of all kinds of sounds, words, symbols or images by wire, wireless, fiber-cable or other electromagnetic system. Since it is clear that phone calls fall under electric telecommunication as defined in the Act, it cannot be included in 'conversation between others' provided in Article 3 Paragraph of the Act. In addition, 'tapping of electric telecommunication' provided in Article 2 item 7 of the Act, when considered with the provision of 'censorship of mail' under Article 2 item 6, means a 3rd party's doing each conducts of Article 2 item 7 without the consent of both transmitter and receiver. Where one party of a phone call, which falls under electric telecommunication, records(the Act uses a term of 'select and record') the conversation without notice to the other party, it does not constitute 'tapping'. (Therefore, if one party of a phone call secretly records the conversation without notice to the other party, he does not violate Article 3 Paragraph 1 of the Act any more than one party of a conversation recording the conversation without notice to the other party.) But in case of a third person, if he recorded the call with the consent of only one party, that is, with no consent of the other party, his conduct should be a violation of Article 3 Paragraph 1 of the Protection of Communication Secrets Act, considering the provision of the Constitution which pronounces the inviolability of privacy and communication as one of the basic rights of the people, and the purpose of the Protection of Communication Secrets Act enacted to protect communication secrets and enhance the freedom of communication (This conclusion prevails where a third person records a conversation between others that is not open to the public).

【Reference Provisions】 Items 3, 7 of Article 2, Article 3, Item 1 of Article 16 of the old Protection of Communications Secrets Act (amended by Act No. 6546 on December 29, 2001)

Article 2 of the old Protection of Communications Secrets Act (amended by Act No. 6546 on December 29, 2001) (Definitions) The definitions of the terms used in this act are as follows

1.~2. <omitted>

3. The term "telecommunication" means transmission or reception of all kinds of sounds, words, symbols or images by wire, wireless, fiber cable or other electromagnetic system.

4.~6. <omitted>

7.The term "tapping" means acquiring or recording the contents of telecommunication by listening to or communally reading the sounds, words, symbols or images of the communication through electric and mechanical devices without the consent of the party concerned or interfering with their transmission and reception.

8. <omitted>

Article 3 of the old Protection of Communications Secrets Act (amended by Act No. 6546 on December 29, 2001) (Protection of Secrets of Communication and Conversation) No person shall censor any mail, wiretap any telecommunication, record or eavesdrop conversation between others that is not open to the public, so long as it is not allowed by this Act, the Criminal Procedure Code or the Military Court Act: Provided, That the cases under each of the following items shall be determined by the Acts concerned.

1.dealing with the returned postal materials: when you have to open postal packages which is suspected to contain materials forbidden by Articles 28, 31, 35, 36 of the Postal Act such as explosives; when you return a sender a postal material which cannot be delivered to a recipient or a recipient rejected to receive; when you open a postal material to know a sender's name and address for the reason that a recipient rejected to receive the postal material which doesn't have the sender's name and address on the envelope; when you deal with an unreturnable postal material.

2.~5. <omitted>

Article 16 of the old Protection of Communications Secrets Act (amended by Act No. 6546 on December 29, 2001) (Penal Provisions) Any person falling under any of the following items shall be punished by imprisonment with prison labor for not more than 7 years

1. A person who has censored any mail, wiretapped any telecommunication or recorded and eavesdropped any conversation between others, or disclosed or leaked the substances of communication or conversation he obtained in violation of the provisions of Article 3

2. A person who disclosed or leaked the substances of communication or conversations in violation of the provisions of Article 11

【Defendant】 Defendant

【Appellant】 Prosecutor

【Court of First Instance】 Chunan Branch Court of Daejeon District Court Judgment 2000Godan479 delivered on January 19, 2001

【Court of Second Instance】 Daejeon District Court Judgment 2001No237 delivered on December 13, 2001

【Disposition】 The judgment of the court below shall be reversed and the case shall be remanded to the appellate division of the Deajeon District Court.

【Reasoning】 The grounds for appeal are examined as followed.

1. The judgment of the court below

The court below affirmed the judgment of the court of the first instance which had found guilty on the charge that the defendant made won Keun-young make a phone call to Park Soon-ok in Dong-woo beauty parlor located in the same shopping center and ask "Do you pierce ears?" and recorded the conversation through the phone call, which constitutes the recording of a conversation between others that is not open to the public, at his barber shop in a shopping center of Dong-woo apartment complex located in 422 Singye-li Mokchon-myon Cheonan city, for the purpose of filing a complaint against a rival business for the violation of the Public Sanitation Act, approximately 11:00 on June 18, 1999.

The reasoning of the court below is as follows: Article 3 of the old Protection of Communication Secrets Act (amended by Act No. 6546 of December 29, 2001, 'Protection of Communication Secrets Act' or 'Act' hereinafter) prohibits the act of recording conversation between others which is not open to the public in order to protect the secrecy of a conversation between the involved parties. One party's recording the conversation with no consent of the other party does not constitute the crime under Article 3, and neither does the defendant's recording with one party's consent.

2. The judgment of Supreme Court

The Protection of Communication Secrets Act classifies the objects of the regulation into communication and conversation. Communication is again divided into mail and electric telecommunication. Article 2 Paragraph 3 of the Act defines the term 'electronic telecommunication' as transmission or reception of all kinds of sound, words, symbols or images by wire, wireless, fiber-cable or other electromagnetic system. Since it is clear that phone calls fall under electric telecommunication as defined in the Act, it cannot be included in 'conversation between others' provided in Article 3 Paragraph of the Act. In addition, 'tapping of electric telecommunication' provided in Article 2 item 7 of the Act, when considered with the provision of 'censorship of mail' under Article 2 item 6, means a 3rd party's doing each conducts of Article 2 item 7 without the consent of both transmitter and receiver. Where one party of a phone call, which falls under electric telecommunication, records(the Act uses a term of 'select and record') the conversation without notice to the other party, it does not constitute 'tapping'. (Therefore, if one party of a phone call secretly records the conversation without notice to the other party, he does not violate Article 3 Paragraph 1 of the Act any more than one party of a conversation recording the conversation without notice to the other party.) But in case of a third person, if he recorded the call with the consent of only one party, that is, with no consent of the other party, his conduct should be a violation of Article 3 Paragraph 1 of the Protection of Communication Secrets Act, considering the provision of the Constitution which pronounces the inviolability of privacy and communication as one of the basic rights of the people, and the purpose of the Protection of Communication Secrets Act enacted to protect communication secrets and enhance the freedom of communication (This conclusion prevails where a third person records a conversation between others that is not open to the public).

As to the charge against the defendant, the prosecutor states that the defendant's conduct of having Won Keun-young make a phone call to Park Soon-ok and recording the conversation constitutes an act of recording a conversation between others that is not open to the public. Considering the charge in a whole, it is proper and reasonable to understand that the charge was made on the defendant's conduct of tapping the phone call between won Keun-young and Park Soon-ok which falls under electric telecommunication. For such tapping of a phone call not to be a violation of Article 3 Paragraph 1 of the Act, both parties' consents are required in principle, and it cannot be said that such a conduct with only one party's consent is legal.

Since the court below viewed the conduct of the defendant as an act of recording a conversation between others and affirmed the trial court's non-guilty judgment on the ground that he had obtained at least one party's consent, it misunderstood the facts of the charge and erred in interpreting Article 3 Paragraph 1 of the Act. The grounds for appeal can be accepted.

3. Therefore, the court below's judgment shall be reversed and the case shall be remanded to the court below for retrial and determination. This decision is delivered with the assent of all Justices who reviewed the appeal.

Justices Suh Sung (Presiding Justice)

Lee Yong-woo

Bae Ki-won (Justice in charge)

Park Jae-yoon

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