통신비밀보호법위반죄와 정당행위 -통신비밀 침해한 결과물의 언론보도와 정당행위를 중심으로- (The Crime of Violating the Protection of Communications Secrets Act and Justifiable Acts - Focusing on the News Reporting of the Results of Communications Secret Infringing, and Justifiable Acts -)

서지정보

· 발행기관 : 한국형사판례연구회
· 수록지 정보 : 형사판례연구 / 20권 / 240 ~ 272페이지
· 저자명 : 이희경

초록

With the rapid development of communications technologies today,wiretapping equipment has also seen great strides in improvement, making it easier than ever before to wiretap communications or record conversations and thus threatening the secrecy and freedom of communications. Furthermore, the recent domestic and overseas illegal wiretaps have raised the suspicion and fear that ordinary citizens, and not just political and industry figures, may be subject to wiretapping. The secrecy and freedom of communications broaden the privacy of citizens and promote social communication, while the freedom of the press functions as a means of heightening the individuality of autonomous individuals, promoting the formation of public opinion for social unity,and a prerequisite for a democratic order of governance. When the freedom of communications and the freedom of the press, both core values in a democratic society, are in conflict with each other, the question is how to harmonize the two while protecting them both to the maximum possible extent. That is the issue in the judgment which is the subject of this work.
In the conflict between the secrecy of communications and the freedom of the press, the majority opinion in the judgment appears to place more weight on the protection of personal communications secrets over the freedom of the press which serves the public’s right to know,even while acknowledging the importance of both values. This position of the Supreme Court differs from its previous judgments on libel, privacy infringement, and announcement of criminal accusations by news reports,in which the Court emphasized the public’s right to know (or the public interest) and recognized the defense of legality for the reports of the news media. However, in the case at issue, the conversation which was disclosed resulted from an illegal wiretap by a state agency, while the news agency who made the disclosure was a third party that did not participate in the illegal wiretap. The content of the disclosed conversation is also factual and pertains to an important public interest in a democratic society, and the parties to the conversation are also public figures. These facts make render questionable the Court’s emphasis on the protection of communications secrets over the public interest, and it is incorrect in concluding that the news reporting was unjustified.
In conclusion, the conversation disclosed by the news agency which did not participate in the illegal wiretap pertained to an important public interest, and the defendant cannot be said to have used illegal means to obtain the wiretapped information in his payment of compensation. The report also directly concerned an important public interest, and while the names of the parties were made public in the course of reporting,proportionality in the means of reporting may be recognized in consideration of the importance of the conversation and the public status of the parties to the conversation. Taking further into consideration that the instigator of the illegal wiretap was a state agency, that the defendant did not take an active or leading role in obtaining the wiretapped information, and that the interest from the reporting is superior to the interest from the maintenance of communications secrets when the process of reporting and the purpose and means of the reporting are taken into account as a whole, the reporting is a justified act under Article 20 of the Criminal Act that does not violate social norms.

영어초록

With the rapid development of communications technologies today,wiretapping equipment has also seen great strides in improvement, making it easier than ever before to wiretap communications or record conversations and thus threatening the secrecy and freedom of communications. Furthermore, the recent domestic and overseas illegal wiretaps have raised the suspicion and fear that ordinary citizens, and not just political and industry figures, may be subject to wiretapping. The secrecy and freedom of communications broaden the privacy of citizens and promote social communication, while the freedom of the press functions as a means of heightening the individuality of autonomous individuals, promoting the formation of public opinion for social unity,and a prerequisite for a democratic order of governance. When the freedom of communications and the freedom of the press, both core values in a democratic society, are in conflict with each other, the question is how to harmonize the two while protecting them both to the maximum possible extent. That is the issue in the judgment which is the subject of this work.
In the conflict between the secrecy of communications and the freedom of the press, the majority opinion in the judgment appears to place more weight on the protection of personal communications secrets over the freedom of the press which serves the public’s right to know,even while acknowledging the importance of both values. This position of the Supreme Court differs from its previous judgments on libel, privacy infringement, and announcement of criminal accusations by news reports,in which the Court emphasized the public’s right to know (or the public interest) and recognized the defense of legality for the reports of the news media. However, in the case at issue, the conversation which was disclosed resulted from an illegal wiretap by a state agency, while the news agency who made the disclosure was a third party that did not participate in the illegal wiretap. The content of the disclosed conversation is also factual and pertains to an important public interest in a democratic society, and the parties to the conversation are also public figures. These facts make render questionable the Court’s emphasis on the protection of communications secrets over the public interest, and it is incorrect in concluding that the news reporting was unjustified.
In conclusion, the conversation disclosed by the news agency which did not participate in the illegal wiretap pertained to an important public interest, and the defendant cannot be said to have used illegal means to obtain the wiretapped information in his payment of compensation. The report also directly concerned an important public interest, and while the names of the parties were made public in the course of reporting,proportionality in the means of reporting may be recognized in consideration of the importance of the conversation and the public status of the parties to the conversation. Taking further into consideration that the instigator of the illegal wiretap was a state agency, that the defendant did not take an active or leading role in obtaining the wiretapped information, and that the interest from the reporting is superior to the interest from the maintenance of communications secrets when the process of reporting and the purpose and means of the reporting are taken into account as a whole, the reporting is a justified act under Article 20 of the Criminal Act that does not violate social norms.

참고자료

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