언론기관의 보도에 의한 통신비밀 공개행위의 정당행위 성립요건

Abstract

This Article is a commentary on the Supreme Court en banc Decision 2006Do8839 decided March 17, 2011. This case established a de novo standard of review by presenting, for the first time, the elements for determining whether the reporting act of the press constitutes a justifiable one, in case where the press not involved in the unlawful interceptionㆍrecording acquired the communication secrets and disclosed them later through the report. The Protection of Communications Secrets Act prohibits not only unlawful interceptionㆍrecording acts, but also disclosureㆍrevelation of communication secrets collected by such unlawful methods, and punishes violations. The act of disclosing communication secrets triggers issues of conflicts and balancing of constitutional values of the protection of communication secrets and the freedom of speech as the legal issues separate from the preceding acts of unlawful interceptionㆍrecording. Especially, the issue of conflicts between the aforementioned two fundamental rights came to the fore if the press which was not involved in unlawful interceptionㆍrecording of communication secrets acquired and disclosed communication secrets through the report upon its determination that the communication secrets were concerned with public issues. This Supreme Court en banc Decision emphasized the constitutional value and function of the protection of communication secrets in the modern information society. Further, its significance lies in establishing the criteria of balancing the protection of communication secrets and the freedom of speech and press where the former conflicts with the latter by presenting the elements of a justifiable act concerning the act of the press disclosing the communication secrets, in case where it was not involved in the unlawful interceptionㆍrecording, etc.