Whether Article 3(1) of the Protection of Communications Secrets Act is violated in a case where one of the three persons recorded the said conversations (negative)

Article 3(1) of the Protection of Communications Secrets provides that “A person shall not record or listen to conversations between others that are not open to the public” means that a third party, who does not participate in the conversation, shall not record the speech between others that make the said conversation. In a case where a third party recording the said conversation between three persons, the other party’s speaking cannot be deemed to be “the conversation between others” in relation to the recording person, and such recording cannot be deemed to violate Article 3(1) of the Protection of Communications Secrets Act.

Articles 3(1) and 16(1)1 of the Protection of Communications Secrets Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Gwangju District Court Decision 2006No563 Decided June 28, 2006

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

Article 3(1) of the Protection of Communications Secrets provides that “A person shall not record or listen to conversations between others that are not open to the public.” The purport of Article 3(1) of the same Act is that a third party, who does not participate in the conversation, shall not record his/her speech among others. In a case where one of the three persons recorded the said conversation, the other person’s speech cannot be deemed to be “the conversation between others” in relation to the recorder. Thus, such recording cannot be deemed to violate Article 3(1) of the Protection of Communications Secrets Act.

According to the reasoning of the judgment below of this case, the court below affirmed the judgment of the court of first instance to the same purport, on the following grounds: "The defendant recorded the conversations between the above three persons as a party to the conversation, and the defendant did not record the conversations between the above non-indicted 1 and the non-indicted 2 as a third party, on July 9, 2005, at the office of "(business name omitted)" using a small tape recorder at the same place where the non-indicted 1 and 2 used the above non-indicted 1 and the above non-indicted 2."

Examining the reasoning of the judgment below in comparison with the above legal principles and records, we affirm that the court below found the defendant not guilty of this part of the facts charged on the ground that it did not constitute a crime, and there is no error of law by misunderstanding the legal principles or by misunderstanding the rules of evidence.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)