Legal Responsibility for Recording Conversations Between Others Under the Communication Privacy Protection Act (Invasion of Voice Rights)

Hello. I am lawyer Shin Jun-seon from the Law Firm Cheongchul.

With the recent convenience of recording on smartphones, there are frequent instances of recording conversations as a means of securing evidence, whether it be verbal abuse from malicious complainants, suspicious conversations between company superiors and clients, or the stories of those confiding secrets in me.

As such, it can be assumed that anyone now knows the general principle that "only conversations I participate in can be recorded." However, there still exist ambiguous boundaries, and many wonder whether it is permissible to record conversations between others for “public interest.”

Nevertheless, determining whether a recording is for public interest is not something individuals can easily judge, and misinterpreting this could lead to violations of the Communication Privacy Protection Act or even liability for damages due to invasion of voice rights, so caution is needed.

[Question]

What legal responsibilities arise from recording conversations between others under the Communication Privacy Protection Act?

[Answer]

1. Applicability of 'Conversations Between Others' Under the Communication Privacy Protection Act

Article 3, Section 1 of the Communication Privacy Protection Act states, "No one may record or listen to conversations between others that are not public using electronic devices or mechanical means." Here, what constitutes 'conversations between others that are not public', and how far one should go to determine what is considered conversations between others, becomes an important issue in practice.

The Supreme Court held that cases where the official directly records or listens to the abusive remarks of a malicious complainant, for example, are not subject to this provision, as the official is participating as one of the parties to the conversation. On the other hand, sounds that are not conversation such as screams or noises do not qualify as 'conversation' (Supreme Court Decision 2017. 3. 15. 2016do19843).

Conversely, even in a public place, discussions presumed to be private can be protected. The Supreme Court ruled that when a public official recorded a conversation suspecting that their superior accepted illegal money from a complainant, even though the conversation occurred in a public complaints office, it could not be regarded as a conversation publicly disclosed because the speakers could not be seen as permitting or expecting the recording. The defendant also claimed that their recording was justified and thus the illegality was negated; however, the court ruled that the defendant's mere assumption of illegal circumstances did not justify the recording (Supreme Court Decision 2023. 9. 27. 2023do10284).

2. Recognition of Justifiable Action (Negation of Illegality)

In cases where violations of the Communication Privacy Protection Act are concerned, illegality can be negated if, as the defendant claimed in the above case, it meets the criteria of 'justifiable action' under Article 20 of the Criminal Act. Case law considers the following requirements to determine whether an action is justifiable:

-  Concerns about specific and realistic harm

-  Need and urgency for preserving evidence

-  Whether recording is the only means of securing evidence

-  Reasonableness of the scope of the recording

Recently, in a case involving a special needs teacher, a lower court found that if it is recognized that there is urgency and reasonableness in that there are no other methods other than recording, the illegality of violating the Communication Privacy Protection Act could be negated. In a situation where there were no CCTV cameras to confirm instances of abuse, it was deemed that there was no other way due to the class being focused on a small group of disabled students, thus they ruled that illegality was negated.

However, the Supreme Court has consistently denied the evidentiary power of conversations between others, so the results of future appeals and Supreme Court decisions should be monitored.

3. Is Illegality Negated? Must be Assessed Through “Comparative Weighing”

As seen above, in situations where violations of the Communication Privacy Protection Act are in question, the determination of whether illegality is negated hinges on the concept of 'comparative weighing.' This refers to the issue of which should be prioritized between individual interests and public interest, and case law has expressed this as weighing the constitutional rights of personal privacy and communication secrecy against public interests such as preventing crime or remedying harm, thereby assessing illegality.

In particular, it tends to recognize a higher possibility of negating illegality when the purpose is a public interest such as whistleblowing or detecting criminal acts, compared to cases aimed at personal gain or resolving private disputes; however, even in these cases, the necessity and reasonableness of the recording must be specifically proven.

4. Invasion of Voice Rights and Compensation for Damages

Recently, irrespective of violations of the Communication Privacy Protection Act, there has been an increase in civil claims for damages on the grounds of invasion of voice rights. The Supreme Court has determined that "voice rights are an independent right derived from constitutional personality rights," and thus any infringement thereof constitutes a tort, leading to a recognition of liability for damages.

However, even in these cases, if the recording act qualifies as justifiable action, the invasion of voice rights as a tort is not recognized. In a recent lower court ruling involving a dispute between teachers at a school where one recorded the voice of the other, and the other claimed damages for invasion of voice rights, the court denied liability for damages on the grounds of negation of illegality. The court considered that the length of the recording was only about 23 seconds, and since there had been similar situations before, the necessity and urgency for one party to record to prevent and document the incident were recognized. Moreover, as the incident occurred in a faculty office already attended by multiple individuals, the degree of infringement was considered minimal, and ultimately, as the recording was submitted only to law enforcement and the court, it was deemed to qualify as justifiable action, thus negating illegality (Seoul Central District Court Decision 2019. 7. 10. 2018na68478).

Conversely, in a case where contents recorded without the speaker's knowledge were used in a documentary film without permission, damages of 2 million won were awarded (Seoul Western District Court Decision 2021. 1. 21. 2020na47936), and in another instance where a former employee was encouraged to speak negatively about the company in a phone call, which was then transcribed and submitted as evidence in litigation against the company, damages of 3 million won were acknowledged (Suwon District Court Decision 2013. 8. 22. 2013na8981). Recently, in a case where a third party's call with the spouse of a presidential candidate was broadcast on YouTube without permission, damages of 10 million won were recognized (Seoul Central District Court Decision 2023. 2. 10. 2022gadan5015109).

5. Implications

In summary, when recording conversations between others, the following points should be particularly noted:

-  Examine whether the conversation to be recorded is subject to the protection of the Communication Privacy Protection Act

-  Confirm the existence of specific reasons that can warrant recognition as justifiable action

-  Consider notifying the other party or obtaining their consent for the recording

-  Limit the scope of recording to the minimum necessary and minimize the usage of the content recorded (e.g., law enforcement, courts)

Legal disputes related to recording conversations can involve both criminal and civil liabilities, and particularly in recent times, the infringement of voice rights is being treated as an important issue. If you receive contact from law enforcement regarding an alleged violation of the Communication Privacy Protection Act due to your recording or the written claim for damages from the owner of the recorded voice regarding invasion of voice rights, you must undergo professional legal review to determine whether the recorded conversation is protected under the Communication Privacy Protection Act and assess whether the circumstances at the time of recording and its purpose meet the criteria for negation of illegality.

The Law Firm Cheongchul is composed of top attorneys from leading law firms and large corporations, and has extensive experience in providing advice and litigation in relation to the legality of recording conversations, evidentiary power, invasion of voice rights, and related disputes. Therefore, if you need legal consultation regarding these matters, please feel free to contact us at any time.