Is it Legal to Secretly Record a Conversation (in Korea)?

By klawguru, October 30, 2014

In Korea, it is legal to secretly record a conversation if you yourself are a party to it. Otherwise, it’s illegal (and a crime).

The pertaining law is the Protection of Communications Secrets Act (통신비밀보호법).

In particular, let’s take a look at Articles 3, 4, 14, and 17.

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Article 3 (Protection of Secrets of Communications and Conversation)

(1) No person shall censor any mail, wiretap any telecommunications, provide communication confirmation data, record or listen to any conversation between others that are not made public, without recourse to this Act, the Criminal Procedure Act or the Military Court Act: Provided, That the following cases shall be governed by the relevant Acts:

1. Handling of returned mail, etc.: Where parcel postal items (including any mail similar thereto) suspected of containing such contraband items as explosives is opened, where the mail cannot be delivered to the addressee or is returned to the sender because of the addressee’s refusal to accept it, where the mail is opened in order to identify the address and name of the sender of the mail that the addressee refuses to receive because of missing address and name of the sender, or where any unreturnable mail containing valuables is handled, in accordance with provisions such as Articles 28, 32, 35 and 36 of the Postal Service Act;

2. Inspection of import and export mail: Customs clearance of mail, other than personal correspondence under Articles 256 and 257 of the Customs Act;

3. Communications with persons under detention or in prison: Control of communications with the persons under detention or in prison under Article 91 of the Criminal Procedure Act, Article 131 of the Military Court Act, Articles 41, 43 and 44 of the Administration and Treatment of Correctional Institution Inmates Act and Articles 42, 44 and 45 of the Act on the Execution of Sentences in the Army and Treatment of Military Prisoners;

4. Communications with persons declared bankrupt: Where a trustee in bankruptcy receives communications addressed to a person declared bankrupt under Article 484 of the Debtor Rehabilitation and Bankruptcy Act;

5. Monitoring radio waves for the elimination of interference, etc.: Where radio waves are monitored in order to maintain order in radio waves by, for example, eliminating interference under Articles 49 through 51 of the Radio Waves Act.

(2) Any censorship of mail or any wiretapping of telecommunications (hereinafter referred to as “communication-restricting measures”) shall be used as a supplementary means of facilitating a criminal investigation or ensuring national security, and efforts shall be made to minimize the violation of people’s communication secrets.

(3) No person shall provide or be provided with a serial number of any terminal apparatus: Provided, That this shall not apply where the enterprise for manufacturing the terminal apparatus of mobile telephone or the mobile communications business operator provides or is provided with a serial number for a performance of lawful business, such as the opening of a service for terminal apparatus, repairs, etc.

 

Article 4 (Prohibition of Use of Contents of Mail from Illegal Inspection and Contents of Telecommunications from Illegal Wiretapping as Evidence)

Mail or its contents obtained through illegal inspection and the contents of communication acquired or recorded through illegal wiretapping in violation of Article 3 shall not be admitted as evidence in a trial or disciplinary procedure.

 

Article 14 (Prohibition of Interference in Others’ Conversation Secrets)

(1) No person shall record a conversation between others that is not open to the public or listen to it through the employment of electronic or mechanical devices.

(2) The provisions of Articles 4 through 8, 9 (1) (former part) and (3), 9-2, 11 (1), (3) and (4) and 12 shall apply to recording or listening as referred to in paragraph (1).

 

Article 17 (Penalty Provisions)

(1) Any person falling under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than five years or by a (criminal) fine not exceeding 30 million won:

1. A person who has failed to keep a cover copy of a written permission for communication-restricting measures or an emergency wiretapping statement, etc. in violation of the provisions of Article 9 (2);

2. A person who has failed to keep records in violation of the provisions of Article 9 (3) (including him/her to whom the provisions of Article 14 (2) shall apply);

3. A person who has failed to confirm a telephone number of any person subject to the communication-restricting measures, which is entered in the written permission for communication-restricting measures or the emergency wiretapping statement, or divulged any password used for telecommunications in violation of the provisions of Article 9 (4);

4. A person who has manufactured, imported, sold, distributed, possessed or used wiretapping equipment, and advertised them for the aforementioned purposes without obtaining authorization thereof in violation of the provisions of Article 10 (1);

5. A person who has failed to make or keep authorization records of wiretapping equipment in violation of the provisions of Article 10 (3) and (4);

5-2. A person who has engaged in detecting illegal wiretapping equipment either by failing to make a registration under the provisions of Article 10-3 (1), or by making a false registration;

6. A person who has been provided with the communication confirmation data or provided such data in violation of the provisions of Article 13 (4).

(2) Any person falling under any of the following subparagraphs shall be punished by imprisonment with labor for not more than three years or by a (criminal) fine not exceeding ten million won:

1. A person who has given or received a unique number of terminal equipment in contravention of the provisions of Article 3 (3);

2. A person who has failed to discontinue immediately the emergency communication-restricting measures in violation of the provisions of the latter part of Article 8 (2) or the latter part of Article 8 (9);

3. A person who has failed to give notice with respect to the execution of the communication-restricting measures in violation of the provisions of Article 9-2 (including him/her to whom the provisions of Article 14 (2) shall apply);

4. A person who has failed to report the current status of the provision of communication confirmation data, etc. to the Minister of Science, Information and Communications Technology (ICT) and Future Planning or to keep relevant materials in violation of the provisions of Article 13 (7).

Translation by KLRI (Korea Legislation Research Institute)

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As you can see, the law only prohibits secretly recording (and wiretapping, etc.) of conversations “between others.” This essentially means if you are a party to a conversation, you may lawfully record that conversation even w/o the consent of the other party or parties. This was affirmed by the Supreme Court of Korea. Basically, the Court ruled it is legal/lawful to secretly record a conversation even amongst 3 people if you yourself are a party to it. So, the bottom line is whether or not you were a party to the recorded conversation. Such secretly recorded conversations can even be used as evidence in court.

In my opinion, it might be useful to record conversations in the following situations:

1) Employer-Employee: Making a complaint, giving a formal warning, being promised something/payment, etc.

2) Doctor-Patient: If the patient is being explained a particular surgery he/she will undergo, etc.

3) Lender-Lendee: Acknowledgement of a loan, promises to pay back, etc.

4) Landlord-Tenant: Making a complaint, putting the other party on notice, etc.

5) Criminal-Victim: When being harassed, threatened, blackmailed, etc.

Of course, there are many other situations where recording a conversation might later come in handy. In law, it’s wise to always think in terms of “But, how would I (later) prove that?”

Thanks for reading!