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Secretly Photographed Evidence of a Spouse’s Affair Can Be Used in Civil Court — But the Hidden Recorder Cannot…

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Korea’s Supreme Court has drawn a clear line between two types of covertly obtained evidence in a marital infidelity case: photographs taken of a spouse’s phone are admissible in civil proceedings, but secretly recorded conversations are not. Here are the key points.

Issue

When a spouse covertly photographs another person’s phone contents and secretly installs a recording device in a vehicle to gather evidence of infidelity, can either or both types of evidence be admitted in a civil damages suit?

Facts

  • While divorce proceedings were underway, A secretly installed a recording device in the family vehicle between September and November 2019, capturing conversations between A’s spouse and B and others.
  • A also photographed text messages, photos, and videos stored on the spouse’s phone using A’s own phone, as a separate method of gathering evidence of the affair.
  • A was subsequently criminally convicted under the Protection of Communications Secrets Act for the covert recordings.
  • In January 2022, A filed a civil damages suit against B and two others for engaging in an affair with A’s spouse.
  • The central legal issue at trial was whether either category of evidence — the vehicle recordings or the phone photographs — could be admitted.

Court Decision

  • The Supreme Court (Division 2) confirmed a partial victory for A, upholding the lower court’s findings on admissibility.

On the vehicle recordings, the court applied the Protection of Communications Secrets Act, which expressly prohibits recording private conversations between others without consent and bars the use of such recordings as evidence. The audio files were excluded entirely.

On the phone photographs, the court reached a different conclusion. It held that in civil proceedings, evidence that was obtained through potentially unlawful means cannot be categorically excluded simply because of how it was gathered. Each case requires an individual balancing exercise weighing two competing interests: the protection of the subject’s personal and privacy rights on one side, and the value of discovering the truth and achieving substantive justice on the other.

Factors relevant to that balancing exercise include the nature of the case, the circumstances in which the evidence was obtained, the degree of harm to the interests of the person whose information was captured, and the necessity and urgency of securing the evidence.

Applying that framework, the court found that the phone photographs met the admissibility threshold. The evidence was essential to proving the affair, divorce proceedings were already underway — creating genuine urgency — and while some degree of privacy intrusion was present, it did not rise to the level of a serious infringement of B’s personal rights.

Key Takeaways

  • In Korean civil proceedings, illegally obtained evidence is not automatically inadmissible. Courts must weigh the competing interests case by case.
  • The Protection of Communications Secrets Act creates an absolute bar on using secretly recorded third-party conversations — in both civil and criminal proceedings. This bar is categorical and does not yield to a balancing test.
  • Photographing another person’s phone contents occupies a different legal category. While it may violate the Act on Promotion of Information and Communications Network Utilization, that violation alone does not automatically disqualify the evidence in a civil case.
  • The balancing factors that favor admissibility include the probative necessity of the evidence, the urgency of the situation in which it was obtained, and the relatively limited nature of the privacy harm to the opposing party.

Why This Matters

This ruling provides important practical guidance for practitioners handling infidelity-related civil litigation in Korea. It confirms that there is a meaningful legal difference between recording conversations and photographing stored data — and that the civil courts will not treat all covertly obtained evidence the same way. For clients navigating marital disputes, the decision underscores both the risks and the limits of self-help evidence gathering: a hidden recorder is a criminal act that yields nothing in court, while photographing a phone, though legally risky, may produce admissible evidence if the circumstances justify it. The case also connects to the ongoing Supreme Court review of secret recordings in the Ju Ho-min special education case — making this a broader moment of judicial clarification on covert evidence across multiple contexts.

Article: https://www.insight.co.kr/news/554197

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