‘삼성 X파일’ 보도 및 공개사건 판결 비판 - 대법원 2011.3.17. 선고 2006도8839 판결 및 대법원 2011.5.13. 선고 2009도14442 판결 -

Abstract

The Samsung X-File, which was illegally wiretapped by agents of the Agency for National Security Planning in 1997 and leaked in 2005, showed that the Samsung Group illegally provided fund to a conservative candidate before the 1997 presidential election and had regularly given 'rice cake money' to a number of high ranking public prosecutors. All of the related figures were not punished for the statute of limitation, while two reporters and a congressman were punished for revealing the X-file to the public. Mr. Lee Sang-Ho, who as an Moonhwa Broadcasting Company[MBC] reporter first obtained the X-file and reported it through MBC, was punished for the violation of the Communication Privacy Protection Act[CPPA]. Mr. Roh Hoe-Chan,who as a Democratic Labor Party congressman distributed the list of the prosecutors who had received the 'rice cake money' to the reporters in the National Assembly and unloaded on his internet homepage, was punished for defamation of the prosecutors and the violation of CPPA. The eight-to-five majority opinion of the Supreme Court held that Mr. Lee is guilty in that CPPA prohibits the release of the communication obtained by illegal wiretapping. The majority opinion provides very narrow exception for the prohibition,which is not applicable to the defendant. After this decision, the Court also held that Mr. Roh is guilty of uploading the list of the prosecutors on the internet homepage whileas not guilty of defamation and distributing it to the reporters. Criticizing these two decisions, this Article argues that the Supreme Court overprotects the personality rights of the public figures who committed serious crimes; the communication obtained by illegal wiretapping may be released by the press if the press is not involved in the illegal wiretapping and the communication contains significant public interests; and the congressman's privilege of speech covers the uploading of the list on his/her internet homepage.