통화자 일방의 전화통화 녹음에 있어서의 손해배상책임 - 수원지방법원 2013. 8. 22. 선고 2013나8981 판결의 검토를 중심으로 -

It is well-known that the call recording by the party participating the conversation is not against the Telecommunication Secret Protection Act(“TSPA”) and most of the smart phone has the function to record, so that many people believe that call recording could not be the object of the legal study any more. However, as shown in the ruling discussed, there is possibility for call recording to construe as tort in civil law area. That is to say, besides the issues raising from TSPA which protects the freedom of telecommunication, the right to the voice and the right of privacy belonging to personal rights based on the Constitution must be examined thoroughly. Although there is not any explicit definition by the law, the ruling discussed says the right to the voice is that “the right not to be recorded, played, wirecapped, broadcast or copied and distributed in invitum”. The intrusion of the right to the voice and privacy is occurred just by the recording by a party. Making public is another issue that makes illegality of the intrusion severe. But, the intrusion of the personal rights does not mean the recognition of tort. The determination of unlawfulness or illegality must be settled down, which is the output of the balance of interest. The balance of interest takes many factors into consideration such as self-defense, justifiable act and so on. On the other hand, we have to think about the amount of compensation for pesonal injury. Although we say the intrusion is tort, in case the mount is too small, the judgment could be meaningless. The ruling discussed decided that when a party recorded the call as evidence at the civil procedure, the unlawfulness is recognized and the liability of tort is approved.