상대방 몰래 한 녹음과 통신의 비밀

Abstract

It is becoming a social controversy again that one of the parties on a phone or conversation records their conversation without the other party’s consent and discloses it. This is the case in which a reporter of an Internet media company secretly recorded his phone calls with a public figure several times and handed them over to a terrestrial broadcaster’s investigative program, and Presiding Judge Lim Sung-keun engaged in a truth battle surrounding whether the Chief Justice of the Supreme Court refused to accept the Presiding Judge’s resignation. In response, some argued that “Korean smartphones should delete the call recording function like Apple’s iPhone or at least insert an automatic warning message,” and a lawmaker introduced a revised bill for the 「Protection of Communications Secrets Act」, which mainly prohibits “one of the parties to the conversation from recording their conversations without the consent of all of them.” The Supreme Court of Korea has interpreted that the Act adopts the so-called “one-party consent law” by ruling that an act of surreptitious recording a conversation or phone call by one of the parties to the conversation or call without the other party’s consent does not violate the Act. Meanwhile, the U.S. federal statute adopts the “one-party consent law,” which regards the recording as legal if the wiretapper is the party to the conversation or if one of the parties to the conversation agrees to the recording. On the other hand, roughly 38 states in the United States and the District of Columbia, like the federal law, have one-party consent laws, while roughly 14 states have two-party consent laws. According to Rauvin Johl, there are three main reasons why states that adopted the ‘one-party consent law’ chose this principle: (1) literary interpretation of the law’s regulations (2) minor infringement of legal interests and (3) ‘social necessity.’ On the other hand, the two-party consent states have concerned that adopting one-party consent law may violate the secrecy of communication or privacy of the other party, hinder socially desirable exchange of ideas, and make the warrant system nominal. If an act of recording without consent of all the other parties to the conversation is criminalized, it would be impossible to accurately inform the public of matters public concerns in our society, such as sexual harassment committed by a boss in a workplace or human rights abuse at a nursing care home for disabled, etc. It is natural for us to see that any person who exposes information to another person assumes the risk that the person they talked or talked over the phone may be a bigmouth and disclose the information to a third party. In other words, the person who spoke his/her mind to another person should be deemed to take the risk that the information can be leaked to another person. On the other hand, in many cases, surreptitious recordings have been used as evidence to uncover the truth. Therefore, it will be absurd that if the “both-party consent law” is adopted and recordings of matters of public interest are criminally punished in order to protect the subjective expectations of the other party with low protection value.