무단녹음과 음성권 침해, 이익형량

Abstract

Recently, the Seoul Central District Court dismissed a damages claim based on unauthorized voice recording, opining that the recording can be justified, as the recorded was yelling against the recorder without reasonable cause, there had been on-going conflicts between the recorded and the recorder, and the recorder expected violence or defamation by the recorded so that she felt it necessary to record the voice. It is interesting that the defendant, the recorder, argued that the right to one’s own voice is not a right with fixed boundary and the scope of protection thereof is adjustable when it conflicts with other rights or interests, while the claimant, the recorded, argued that it is impermissible to consider the interests of the infringed in the context of justification of unauthorized voice recording. The court did not accept either argument but both arguments show the inconsistency of the justification approach. Undeniably, this kind of voice recording should not be prohibited. Considering the circumstances, it can be regarded as an exercise of general freedom to act. Once we set a rule that voice recording should be authorized either by consent or by law, however, it might be difficult to justify voice recording without consent. Thus, this kind of balancing interests should be made in the context of the articulation of the scope of protection of the right to one’s voice rather than of justification. Besides, this case shows that the application of Personal Information Protection Act presupposes the administration and process of personal information file in the course of business and that it is never the only instance where the process of personal information might hamper the free development of one’s personality. The Constitution or the fundamental right took the role to fill the gap of the current regulation here. The judgement based on the Constitution or the fundamental right without legislation should be, however, cautious. Most of our behavior has facet of processing personal information. It would undermine the general freedom of action too much if we should obtain prior consent whenever there is a process of personal information.