4.Case on the Disclosure of Others' Conversation Illegally Obtained Under the Protection of Communications Secrets Act

[23-2(A) KCCR 286, 2009Hun-Ba42, August 30, 2011]

Questions Presented

1.Whether the part of 'the substances of conversations' of Article 16 Section 1 Item 2 of the Protection of Communications Secrets Act that punishes any person who has disclosed or leaked the substance of conversations he/she has learned from recording or eavesdropping undisclosed conversations between other individuals (hereinafter the "Instant Provision") infringes upon the freedom of expression of the discloser in violation of the rule against excessive restriction (negative)

2.Whether the Instant Provision violates the principle of proportionalitybetween punishment and responsibility (negative)

3.Whether the Instant Provision violates the principle of equality (negative)

Summary of Decisions

1.The Instant Provision that punishes a person who has disclosed contents of illegally obtained conversations of others may be enforced to appropriately protect the freedom of expression of the violator byapplying the general provision of circumstances precluding wrongfulnessof Article 20 (Justifiable Act) of the Criminal Act. Therefore, theabsenceof a special provision of circumstances precluding wrongfulness, as stipulated in criminal defamation, cannot be deemed to be in violation of the principle of proportionality in restricting the basic rights.

2.The disclosure of the illegally obtained conversations would severely invade the privacy of conversations, depending on manner, time, scope of disclosure, as much as the act of illegally obtaining contents of conversations. Therefore, the punishment the Instant Provisionimposes is not excessive beyond the reasonable degree to achieve its

purpose, even if the Instant Provision imposes the same statutory punishment on the person who has disclosed or leaked the substances of illegally obtained conversations he/she has learned of, as theperson who has illegally acquired undisclosed substances of conversationsof others, and even if it does not provide optional pecuniary punishment.

3.The Instant Provision intends to protect privacy through theprotection of the secrecy of private conversations, regardless of damagesof defamation. Therefore, the nature of the Instant Provision that prohibits the disclosure of conversations is not identical enough to the nature of criminal defamation to warrant a comparison between them. Even if they are comparable, the necessity of punishment through the Instant Provision is different from the one of criminal defamation in that the conduct punished by the Instant Provision is disclosing illegally obtained conversations, which invades the privacyof conversations between individuals in private space. Therefore,itwould be not unreasonable discrimination compared to criminal defamation,to omit the special provision of circumstances precluding wrongfulnessfor the person who disclosed conversations.

Opinion of Limited Unconstitutionality of Justice Lee, Kang-Kook

The Instant Provision does not provide the special provision of circumstances precluding wrongfulness for the disclosure of information that was generated through illegal wiretapping, but legally obtained, even if the information is true and the disclosure is solely for thepublic interest. It would be unconstitutional to the extent that the InstantProvision excessively protects the right of secrecy of communications whereas it neglectfully protects or abandons the freedom of expression, among the two conflicting basic rights. The unconstitutional part wouldbe removed by the construction of limited unconstitutionality. Therefore,the Instant Provision is unconstitutional to the extent that it is applied where the information, which is true, that was generated through illegal wiretapping, but legally obtained without any wrongfulness, has been disclosed or leaked solely for the public interest.

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Parties

ComplainantRoh ○-ChanRepresentative: Attorney Park Gab-Ju and one other

Underlying CaseSeoul Central District Court 2007Go-Dan2378 the violation of the Protection of Communications Secrets Act, defamation

Holding

The part of 'the substances of conversations' of Article 16 Section 1 Item 2 of the Protection of Communications Secrets Act (revised byAct No. 6546 on December 29, 2001) does not violate the Constitution.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1.The complainant, through an unknown channel, obtained theso-called 'X-File of Agency for National Security Planning' that recordeda conversation between Lee ○-Soo, then chief secretary to the chairman of ○○ Group, and Hong ○-Hyun, then chairman of ○○ Media Network, wiretapped by the agents of the National Security Planning on September 1997. The complainant, a member of the National Assembly, published the substances of the conversation in a press release at the National Assembly Member's Office Building on August 18, 2005 and posted them on the Internet, and subsequently was indicted on charges of violating the Protection of Communications

Secret Act that prohibits the disclosure of undisclosed conversations of others, learned through ways not stipulated by the Act.

2.While being tried at the Seoul Central District Court, the complainantfiled a motion to request for a constitutional review onArticle 16 Section 1 Item 2 of the Protection of Communications SecretAct, which was dismissed by the court that also found him guilty on February 9, 2009. The complainant filed this constitutional complaint on March 10, 2009.

B. Subject Matter of Review

Despite the complaint that requests constitutional review on the entire provision of Article 16 Section 1 Item 2 of the Protection of Communications Secret Act (revised by Act No. 6546 on December 29, 2001, hereinafter, the 'PCSA'), the issue should be limited to whether the part of 'the substances of conversations' of Article 16 Section 1 Item 2 of the Act (hereinafter, the 'Instant Provision') is unconstitutional, because the complainant was prosecuted on charges of the violation of the PCSA that prohibits the disclosure of confidential conversations of others, learned through procedures not stipulated in Article 3 of the PCSA. The provision at issue and relevant provisions are as follows:

[Provision at Issue]

The Protection of Communications Secret Act (revised by Act No. 6546 on December 29, 2001)

Article 16 (Penal Provisions)

(1)Any person falling under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than 10 years or by suspension of qualification for not more than 5 years:

1.A person who has censored any mail, wiretapped any telecommunicationsor recorded or eavesdropped on any conversations between other individuals in violation of the provisions of Article 3; or

2.A person who has disclosed or leaked the substances of communications or conversations he/she has learned in a manner referred to in subparagraph 1.

[Related Provisions]

(Intentionally omitted)

II.Arguments of the Complainant and the Court's Reasoning for Denying Motion to Request for a Constitutional Review

(Intentionally omitted)

III. Review on the Merit

A. Substances of the Instant Provision

Article 3 Section 1 of the PCSA states no person shall censor any mail, wiretap any telecommunications, provide the communication confirmation data, record or listen to conversations between others that are not made public, without following the provision under the PCSA, the Criminal Procedure Act and the Military Court Act. Article 16 Section 1 Item 1 of the PCSA punishes a person who has censoredany mail, wiretapped any telecommunications or recorded or eavesdroppedany conversations between other individuals in violation of the provisions of Article 3 (hereinafter, "illegal wiretapping or recording") and Article 16 Section 1 Item 2 of the PCSA punishes a person who has disclosed or leaked the substances of communications or conversations he/she has learned through acts stipulated in Item 1. These offenses are separated, but governed by the same statutory punishment (imprisonment for not more than 10 years and suspension of qualification for not more than 5 years). With regard to the interpretation of Article 16 Section 1 Item 2 of the PCSA, the Supreme Court decided that even when the person disclosing the substances of a conversation has not been involved in the illegal wiretapping or recording, merely obtaining the substances of

communications or conversations through a different channel, PCSA isviolated all the same if that person was aware of the illegal wiretappingor recording (the Supreme Court, 2009Do14442, May 13, 2011). In addition, Article 16 Section 1 of the PCSA does not allow any exception or circumstance precluding wrongfulness for the act of disclosure or divulgement of substances of conversations learned from illegal wiretapping or recording.

In addition to punishing the act of illegal wiretapping or recording, disclosing or leaking illegally obtained substances of conversations isindependently punished for the protection of secrecy of communications in the consideration that unless the disclosure or divulgement of illegally obtained substances of conversations or communications is prohibited, motivation for illegal wiretapping or recording would remain and illegal wiretapping or recording could not be effectively curtailed.

B. Freedom of Expression

1. Standard of Constitutional Review

The complainant alleges that his freedom of expression is violated because the Instant Provision does not grant any exemption despite significant public interests justifying the disclosure of illegally obtained substances of conversations of others.

Article 18 of the Constitution states that "[t]he privacy of correspondence of no citizen shall be infringed," guaranteeing the freedom of communication as a basic right with protection of thesecrecy of communication as the core. The protection of freedomof communication as a basic right is intended to protect the communication of individuals in private sectors, as part of privacy (13-1 KCCR 652, 658, 2000Hun-Ba25, March 21, 2001). The Instant Provision which punishes a person who discloses substances of conversations of others which has been acquired by illegal wiretapping or recording, despite not being involved in the illegal acquirement, but

only obtaining the substance of conversations of others through different routes, is intended to protect the secrecy of communication under Article 18 of the Constitution.

However, the Instant Provision punishes a person who discloses substances of conversations one has learned from illegal procedures, thereby restricting the freedom of expression of the person who wishes to disclose substances of the conversations. Although certain illegally acquired conversations may need to be disclosed for the public interest, such as forming of public opinion in a democratic country, the Instant Provision prohibits the disclosure of such conversations, which restricts the freedom of expression of a person who has disclosed or tries to disclose the conversations. Therefore, the Instant Provision results in a collision between two basic rights, namely the secrecy of communication of dialogists and freedom of expression of the discloser.

The collision between two basic rights demands a balancing point where the function and effects of two colliding basic rights are fully respected, in order to maintain unity of the Constitution. Accordingly, the Instant Provision should be reviewed under the principle against excessive restriction, and examine whether the purpose of the InstantProvision is legitimate and whether the means to achieve the legislativepurpose is appropriate or balanced between the restricted freedom of expression and protection of confidential conversations (3 KCCR 518, 528-529, 89Hun-Ma165, September 16, 1991).

2. Legitimacy of Legislative Purpose and Appropriateness of Means

The Instant Provision that punishes a person who disclosed substancesof conversations of others obtained through illegal wiretapping or recording, intends to protect the confidence of conversations between individuals, which is guaranteed by Article 18 of the Constitution, the legislative purpose of which is legitimate. The means employed by the Instant Provision which punishes a person who disclosed or leaked the substances of confidential conversations of others is also appropriate to achieve the legislative purpose.

3. Principle of Proportionality in Restricting Basic Rights

(A)The reason the Instant Provision punishes a person whodisclosesthe substances of confidential conversations of others acquiredby illegalmanners, regardless of the manner he/she obtained the substances of the conversations, is because the manner of acquiring the substances of conversations does not alter the fact that the secrecy of conversations has been invaded by the disclosure of its substances. Confidential conversations of others, which are illegally wiretapped or recorded, may be disclosed when they have not been disclosed at all or when they have been disclosed to certain individuals but has remained confidential to the public. In any case, the degree of the invasion of privacy depends on the manner and time of divulgement and the scope of disclosed substances, regardless of whether the disclosing person has engaged in illegal wiretapping or recording of conversations or whether he/she has learned it from the person who illegally wiretapped or recorded the conversations. Even though a disclosing party was not engaged in illegal wiretapping or recording, the degree of invasion of privacy of conversations and the necessity of punishment would be significant if confidential conversation of individuals not open to the public is disclosed through the press or other highly diffusive media.

(B)The Instant Provision does not grant any provision of circumstances precluding wrongfulness that would justify any disclosure for significant public interests, in prohibiting disclosure of substancesof conversations by a person who learned the substances of conversationsof others which has been illegal wiretapped or recorded. Nonetheless,the general provision of circumstances precluding wrongfulness stipulatedby the Criminal Act would be applicable in such case. Article 20 (Justifiable Act) of the Criminal Act states that an 'act which does not violate social customs and rules' shall not be punishable: The requirements of a justifiable act are legitimacy of motivation or intent of the act, appropriateness of means or manner of the act, balance between the interests of protection and interests of infringement, emergency, and exhaustion that no alternative is available except the act (see Supreme Court September 26, 2003, 2003Do3000).

Therefore, an act of disclosure of others' conversations that were obtained from illegal wiretapping or recording would not be punishable if the act satisfies the requirements of an 'act which does not violate social customs and rules' of Article 20 of the Criminal Act, which are, the conversation is disclosed for significant public interests that justify its purpose; a person who disclosed the conversation is not engaged in illegal wiretapping, recording or other illegal methods to obtain the substances of the conversation; and public interests of disclosing the conversation are more significant than the infringed private interests. The court that applies the Instant Provision to individual cases should determine the scope and manner of regulationby balancing the interests and values of freedom of expression andthe interests and values of the secrecy of conversation, and after comprehensively considering the process of acquiring the conversation, purpose and proceeding of the disclosure, the substances of the disclosed conversation and manner of disclosure, finally should decide whether the disclosure of the conversation violates social customs and rules.

The Instant Provision that punishes a person who has disclosed illegally obtained conversations of others may be enforced to appropriately protect the freedom of expression of the violator byapplying the general provision of circumstances precluding wrongfulnessof Article 20 (Justifiable Act) of the Criminal Act. Therefore, theabsence of a special provision of circumstances precluding wrongfulness,as stipulated in criminal defamation, cannot be deemed to be in violationof the principle of proportionality in restricting the basic rights.

(C)A problem may arise if the court interprets the requirements ofthe justifiable acts of the Article 20 of the Criminal Act in anextremelynarrow way in applying the Instant Provision to an individualcase–for instance, justifying the purpose of the disclosureof the conversation in exceptional cases, such as when the conversationof others directly and immediately endangers highlysignificant public interests like life and body of the public–freedom of expression of the disclosing party may be excessively restricted.

Nonetheless, this would be a problem whether the application of the general provision of circumstances precluding wrongfulness of Article 20 of the Criminal Act to a specific case by the court is appropriate, or a problem of correction within a judicial procedure when the court's decision excessively restricts the freedom of expression of the disclosing party. Thus it is irrelevant as to whether the Instant Provision excessively restricts the freedom of expression.

(D)The development of wiretapping equipments and technologies, followed by the recent progress on information and communication technologies, has increased the possibility that secrecy of private communications may be invaded by illegal wiretapping or recording by the state agencies or a private party. It would be a substantial threat to the confidence of private communications if a personal conversation that should remain confidential is illegally wiretapped or recorded and when the illegally wiretapped or recorded conversation is disclosed by a third party. On the other hand, while the Instant Provision that punishes a person who disclosed or diverged the substances of conversations that have been illegally obtained for the protection of secrecy of confidential conversations tends to restrict the freedom of expression of the disclosing party, the restriction on the freedom of expression by the Instant Provision cannot be deemed more substantial than the secrecy of confidential conversation protected by the Instant Provision, especially considering the fact that disclosure for significant public interests is not punishable under the general provision of circumstances precluding wrongfulness of the Criminal Act.

Therefore, the Instant Provision does not lose the balance ofcollidinglegal interests between the secrecy of confidential conversationand freedom of expression of the disclosing party.

4. Summary

The Instant Provision does not violate the freedom of expression guaranteed by Article 21 Section 1 of the Constitution.

C.The Principle of Proportionality between Punishment and Responsibility

The statutory punishments stated in the Instant Provision are imprisonment and suspension of qualification, excluding pecuniary punishment. An issue is raised whether the Instant Provision violates the principle of proportionality of punishment and responsibility.

1.The types and scope of the statutory punishment, that is, how to punish what kind of crimes, require the comprehensive consideration of our history and culture, circumstances at the time of legislation, values or legal sense of the public and criminal policy of preventing the crime, which should be determined by the legislature and is an area requiring broad discretion of legislation. Therefore, we have held that statutory punishment should not be concluded unconstitutional unless the statutory punishment is too harsh or cruel in comparison to the nature of crime and responsibility, thus losing balance in the criminal punishment system, or when the statutory punishment is excessively beyond the necessary level to achieve the purpose and efficacy of the criminal punishment, clearly in violation of theprinciple of equality and principle of proportionality of the Constitution(7-1 KCCR 539, 547, 93Hun-Ba40, April 20, 1995).

2.The Instant Provision imposes the same statutory punishment (imprisonment less than 10 years and suspension of qualification lessthan 5 years) on the person who has disclosed or leaked the substancesof illegally obtained conversations he/she has learned of, as the person who has illegally acquired the undisclosed substances of conversations of others. The reason for this is because the disclosure of illegally obtained conversations would severely invade the privacy of conversations, depending on manner, time, scope of the disclosure, as much as the act of illegally obtaining contents of conversations.Considering the gravity of damages, nature of crime, protected interests,our history and culture, values and legal sense of the people, and crime survey and criminal policy of preventing the crime, the punishment the Instant Provision imposes is not excessive beyond the reasonable degree to achieve its purpose, even if the Instant Provision

imposes the same statutory punishment on the person who has disclosedor leaked the substances of illegally obtained conversations he/she has learned of, as the person who has illegally acquired undisclosed substances of conversations of others, and even if it does not provide optional pecuniary punishment.

Meanwhile, despite the Instant Provision imposes both imprisonment less than 10 years and suspension of qualification less than 5 years as the statutory punishment, the judge may impose a minimum sentence of imprisonment and suspension of qualification because the lowest limit of each punishment is not stipulated and also may suspend the execution of imprisonment or suspend sentence of both imprisonment and suspension of qualification. Therefore, the statutory punishment of the Instant Provision is not excessively high for the sentencing of punishment corresponding to the responsibility of the crime.

3.The complainant alleges that it violates the principle of equality to impose the same punishment for disclosure of illegally obtained substances of conversations of others when the disclosed substancesare true and was disclosed for substantial public interests with justifiablereasons.

Nevertheless, if disclosing of others' conversations that are illegally obtained was for substantial public interests with justifiable reasons, it would not be punishable for precluding illegality. Even if the entire illegality is not precluded, the judge would consider it in imposing the sentence. Besides, the legislature is not obliged to separately providestatutory punishment, in accordance with whether there is any justifiablereason or not. Therefore, we reject the complainant's argument.

D. Principle of Equality

The complainant argues whereas criminal defamation for the public interests is not punishable under Article 319 of the Criminal Act, aperson who disclosed illegally obtained conversations for the substantialpublic interests is punished because the Instant Provision does

not grant the special provision to preclude wrongfulness, which is unreasonable discrimination against the principle of equality.

However, whereas the essence of criminal defamation (Article 307 of the Criminal Act) is protecting the honor of a person and protection of privacy in the course of punishing defamation is only incidental, the Instant Provision intends to protect privacy through the protection ofthe secrecy of private conversations, regardless of damages of defamation.Therefore, the nature of the Instant Provision that prohibits the disclosure of conversations is not identical enough to the nature of criminal defamation to warrant a comparison between them.

Even if they are comparable, the necessity of punishment through the Instant Provision is different from the one of criminal defamation in that the conduct punished by the Instant Provision is disclosingillegally obtained conversations, which invades the privacy of conversationsbetween individuals in private space. Therefore, it would be not unreasonable discrimination compared to criminal defamation, to omit the special provision of circumstances precluding wrongfulness for the person who disclosed conversations.

IV. Conclusion

Therefore, we find that the Instant Provision does not violate the Constitution in a unanimous opinion of participating Justices, except the opinion of limited unconstitutionality by Justice Lee, Kang-Kook (part V).

V.Opinion of Limited Unconstitutionality by Justice Lee, Kang-Kook

I am of the opinion that the Instant Provision violates the Constitution as far as it is applied where a person who legally obtained the substances of a conversation acquired by procedures stipulated in Article 16 Item 1 of the PCSA discloses or leaks substances of theconversation, which is true, solely for the public interest. My reasoning is as follows.

A. Freedom of Expression and Freedom of Communication

1. Freedom of Expression

Freedom of expression, including freedom of speech and press guaranteed by Article 21 of the Constitution has traditionally been the freedom to express ideas or opinions and to spread them, and is the indispensable basic right to maintain the dignity and value and pursue happiness as a human being and to realize sovereignty of the people by forming and maintaining of democratic politic orders (14-1 KCCR 251, 265, 2001Hun-Ka27, April 25, 2002).

In a democratic country, freedom of expression is an institutional apparatus to guarantee the participatory right of the people and isregarded as a superior basic right, which especially should be guaranteedwhen the expression corresponds to the truth and regards the public interests.

2. Right to Privacy and Freedom of Communication

Article 17 of the Constitution declares that "[t]he privacy of no citizen shall be infringed," and guarantees the substances of privatelife in order to secure human dignity and the right to pursue happiness.In addition, Article 18 of the Constitution stipulates the freedom of communication whose essential substance is the protection of thesecrecy of communication. The protection of freedom of communicationas a basic right intends to provide the means to protect private life or privacy, by guaranteeing private communication between individuals, as part of privacy. It further intends to promote amicable exchange of opinions and information among members of society. Therefore, freedom of communication is significant from every perspective of modern society, including politics, economics, society, and culture.

3. Collision of Basic Rights

The Instant Provision that punishes a person who disclosed or divulged substances of conversations of others he/she learned of,

which was obtained by illegal wiretapping or recording, intends toprotect the secrecy of privacy and freedom and secrecy of communication(hereinafter, "secrecy of communication"), which on the other hand restricts the freedom of expression of a person who discloses thesubstances of communications or conversations, resulting in the collisionof basic rights. In the case of collision of basic rights, we need to seek a harmonizing of norms so that the functions and effects of colliding basic rights can be asserted to the fullest degree, instead of hasty balancing of legal interests or abstract balancing of values which result in choosing one of the basic rights and discarding the other, in the name of maintaining unity of the Constitution.

B. Application of the Instant Provision

1. Summary of Court Opinion

The Instant Provision intends to protect secrecy of private conversationsbetween individuals, which is guaranteed by the Constitution. Because a disclosing act regulated by the Instant Provision may be not punishable if it satisfies the requirements of justifiable acts of Article 20 of the Criminal Act, the freedom of expression may be exercised within that scope. In addition, the necessity to punish a disclosing act of illegally obtained conversations that invades the secrecy of private conversations is stronger than that of defamation, so that it is not unreasonable discrimination even though the Instant Provision does not grant any circumstance precluding wrongfulness.

I will explore circumstances precluding wrongfulness from the perspectiveof application of Article 20 of the Criminal Act and defamation as follows.

2.Relation between the Instant Provision and Article 20 and Article 310 of the Criminal Act

Even when the Instant Provision is violated, it would not be punishable if the act satisfies the requirements of justifiable acts under Article 20 of the Criminal Act. Nevertheless, the court has interpreted and applied Article 20 of the Criminal Act in a narrow and strict

way, especially in the case of collision of basic rights such as freedomof expression (as seen in this underlying case, whereas the appellate court decided the disclosing act of the complainant with regard to the wiretapped conversations is justified under Article 20 of the Criminal Act, the Supreme Court remanded the appellate court's decision, reasoning that the principle of justifiable act was misapplied), so that it is difficult to avoid punishment.

The legislature enacted criminal defamation to protect the honor of an individual, but also considering that freedom of expression, which may be in collision with defamation, is a substantial means to realize sovereignty of the people in a liberal democratic country, enacted Article 310 of the Criminal Act, in addition to Article 20, so that defamation in the course of disclosing true facts for the public interest is not punishable. This legislative purpose is also confirmed by theproviso of Article 251 of the Public Official Education Act (hereinafter,"POEA"). Accordingly, Article 310 of the Criminal Act and a proviso of Article 251 of the POEA intend to correspond to the constitutional demand for proportionate and harmonious guarantee of colliding basic rights, namely honor of individuals and freedom of expression, by balancing and comparing them.

3. Norm-Consistent Interpretation of the Instant Provision

(A)The interpretation of the Instant Provision demands the balancingof legal interests or interpretation consistent with norms in that theprotection of secrecy of communications is in conflict with the freedomof expression. Nevertheless, the protection of secrecy of communicationscan be broadly regarded as in the area of privacy. If the secrecy of communications was invaded solely for the public interest and if the fact is true, the reasoning of Article 310 of the Criminal Act that seeks to compare and adjust the collision between the secrecy of communications and freedom of expression in defamation to protecthonor of individuals would be applicable. In other words, as defamationgrants special circumstances precluding wrongfulness in order to harmoniously guarantee both honor of an individual and freedom of expression, the Instant Provision that causes collision between secrecy

of communications and freedom of expression have no reason to deny special circumstances precluding wrongfulness by interpretation.

(B)The core of freedom of expression that is a key element ofdemocracy in recent years is the freedom of criticism, and fair criticismis an indispensable element for the development of society.

Therefore, even if the disclosed information was generated by illegalwiretapping or recording, if it is obtained without involving any illegality,the contents of which is true and gratifies the public interest, it should be subject to public discussion that forms democracy, not prevented from being disclosed. If free commentary or discussion on information worthy of public debate is totally blocked because of illegality of generating process of the information such as wiretappingor recording, without considering subsequent circumstances, freedomof expression would be intimidated, resulting in the retreat of representational democracy by hindering the formation and conveyance of public opinions.

(C)Naturally there may be concern that the allowance of special circumstances precluding wrongfulness for the disclosure of illegally recorded communications might encourage illegal wiretapping or recording. Nevertheless, the disclosure of information should not be completely prohibited without any exception just because the disclosed information is the fruit of the poisonous tree that was obtained by illegal wiretapping or recording. The legislative purpose to preventillegalwiretapping or recording should be achieved by the rigorous punishment for the illegal wiretapping or recording. The mere concern for encouraging illegal wiretapping or recording should not prevent the constitutional and social responsibility of the press that pursues the truth and the public interest (The U.S. Supreme Court also expressed the same stance). Further, strict interpretation and application ofcircumstancesprecluding wrongfulness lessens the danger of encouragingillegal wiretapping or recording. First, in the process of obtaining the illegally wiretapped or recorded information, illegal methods such as incitement of illegal wiretapping/recording or purchase of illegallywiretapped/recorded resources must not be involved. Next, there has

to be certain assurance of the truth of the disclosed information and public interests should be the sole purpose of the disclosure. The phrase 'solely for the public interest' does not include perfunctory public interests that actually pursue private interests and where the main purpose is for the private interest, both cases the disclosure of which would be punishable. We should refer the practices of the court that hardly allow the establishment of the circumstances precluding wrongfulness of Article 310 of the Criminal Act.

(D)The Instant Provision does not provide the special provision of circumstances precluding wrongfulness for the disclosure of information that was generated through illegal wiretapping, but legally obtained, even if the information is true and the disclosure is solely for the public interest. This leads to the result it excessively protects the right of secrecy of communications whereas it neglectfully protects or abandons the freedom of expression, among the two conflicting basic rights. The Instant Provision is unconstitutional to this extent, unconstitutional part of which would be removed by the construction of limited unconstitutionality.

C. Sub-Conclusion

Therefore, the Instant Provision is unconstitutional to the extent that it is applied where the information, which is true, that was generatedthrough illegal wiretapping, but legally obtained without any wrongfulness,has been disclosed or leaked solely for the public interest.

Justice Lee, Kang-Kook (Presiding Justice), Kim, Jong-Dae, Min, Hyeong-Ki,Lee, Dong-Heub, Mok, Young-Joon, Song, Doo-Hwan, Park, Han-Chul,Lee, Jung-Mi