(영문) 서울중앙지방법원 2019.7.10. 선고 2018나68478 판결

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 7,024,644 won with 5% interest per annum from July 12, 2017 to the delivery date of a copy of the complaint, and 15% interest per annum from the next day to the full payment date.

Reasons

1. Basic facts

A. The Plaintiff and the Defendant are three middle school teachers located in Eunpyeong-gu Seoul Metropolitan Government. At the time of this case, the Plaintiff was a first-year teacher, and the Defendant was a third-year teacher.

B. The Defendant called the first-year teacher D who was in charge of the above event on July 12, 2017, when a problem arose in relation to the student’s participation in the third-year school event that he was in charge. At the same time, the Defendant called the first-year teacher D, who was in charge of the above event on July 12, 2017, and the opinion was found to be the first-year teacher office because the opinion was narrow. At the same time, there was the Plaintiff, D, E, and F.

C. The Plaintiff, who the Defendant entered the first-year school room, went to the school room repeatedly into the school room which is somewhat higher than the Defendant, and the Defendant, without responding thereto, went to D and D’s conversations concerning the problem of students. The Plaintiff continued to have a sound from the Defendant’s school room, and the Defendant started to record the Plaintiff’s voice in his smartphone.

D. The Plaintiff discovered the Defendant’s recording, took the Defendant’s smartphone deduction, and did not return the smartphone by the following day despite the Defendant’s request to return the smartphone. In this regard, the Plaintiff was indicted for the crime of causing property damage and was convicted of a fine of KRW 300,000 on August 14, 2018 (Seoul Western District Court 2017Ma1644), and is still pending in the appellate court (Seoul Western District Court 2018No179).

[Reasons for Recognition] Unsatisfy, Gap evidence 29, 30, Eul evidence 1 to 3, the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff

The Defendant infringed the Plaintiff’s right to voice by recording the Plaintiff’s voice in a secret book. Therefore, the Defendant is liable to compensate the Plaintiff for damages incurred by the said tort (=medical expenses of KRW 5,024,644 + 2,00,000).

B. Defendant

It is unclear whether the right to voice is recognized as a concrete right, and even if the right to voice is recognized, in cases where conflict of legal interests occurs, that is, the Plaintiff’s voice right cannot be deemed as included in the scope of protection even in cases where the Defendant makes a recording for the purpose of preventing or evading the Plaintiff’s tort. Even if the Plaintiff’s voice right was infringed, the Defendant’s act of recording is not unlawful as it is contrary to the circumstances of the instant recording, the relationship between the Plaintiff and the Defendant, and the content of recording

3. Determination

(a) Anyone has a right not to record, reproduce, broadcast, reproduce, or distribute his/her voice without permission, and such voice rights are constitutionally guaranteed by Article 10(1) of the Constitution, so unfair infringement of the voice rights constitutes tort.

However, in a case where the sounder has a legitimate purpose or interest to achieve through the sound recording, and the sounder’s secret recording is deemed to be an act acceptable in light of social ethics or social norms within the necessary scope, the sounder’s secret recording shall be deemed to be dismissed as an act that does not contravene social norms.

B. The Defendant’s act of recording the Plaintiff’s voice without the Plaintiff’s consent is as seen earlier. However, in light of the following circumstances, the Defendant’s act of recording the Plaintiff’s voice was somewhat infringed upon the Plaintiff’s voice right by means of the Defendant’s recording act, it is deemed to be an act that does not violate the social norms within the necessary scope. Therefore, the Defendant’s act is dismissed as unlawful, and thus, the Plaintiff’s assertion is rejected.

① During the conversation with D, the Defendant began to make a sound recording that the Plaintiff continued to talk with D and going to the Defendant in the school room. The Plaintiff’s voice is merely about about 23 seconds, and more than half of which are made a conversation with the Defendant.

② Prior to the instant case, the Defendant had a good attitude between the Plaintiff and the Plaintiff, and even before, there was a perception of damage to the Plaintiff on the ground that the Plaintiff committed a highness to the Defendant. In such a situation, it appears that at the time of the instant case, the Plaintiff continued to go in the teaching room and refrain from continuing sounder, the Plaintiff’s behavior, or the Plaintiff’s recording in order to secure evidence for the fact of damage, and that the need and urgency can be recognized to a certain extent.

③ The sound of the Plaintiff’s voice is not related to the Plaintiff’s secret privacy, but to the effect that it goes to the Defendant’s room. The voice of the Plaintiff was made in a school room, where the Plaintiff was open to the public. The degree of infringement of the Plaintiff’s voice right is weak, and it does not infringe the Plaintiff’s secret privacy or confidential area.

④ The Defendant used the recording files and transcripts only by submitting them to the court in connection with the instant lawsuit or by submitting them to the investigation agency for criminal investigation.

⑤ The Plaintiff asserts that the content of the instant recording is unreasonable that the Plaintiff did not use the content of the recording in a different place, and that the content of the recording did not contain any content of defamation against the Plaintiff. However, in the event of conflict between the Plaintiff and the Defendant regarding the act of infringement of the Plaintiff’s voice rights, the illegality of the act of infringement should be determined by balancing interests, comprehensively taking into account the specific circumstances into account. In the course of balancing interests, other than the elements belonging to the area of infringement, the elements belonging to the damaged interest should also be considered. In addition, the elements belonging to the area of the act of infringement should be considered as factors belonging to the damaged interest, and the degree of damage suffered by the victim due to legal interests, importance, and infringement, and the protection value of the damaged interest. As such, the amount of the Plaintiff’s speech, content of the statement, and the use of the recording file and the recording may be sufficiently

4. Conclusion

The judgment of the first instance that dismissed the plaintiff's claim is legitimate, and thus, the plaintiff's appeal is dismissed.