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Secretly Recording a Partner’s (Affair) Conversation Is Still a Crime, Court Rules

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A man who secretly recorded conversations between his unfaithful spouse and her affair partner — by hiding a recording device on her body and clothing — has been criminally convicted for that recording, even though the underlying motive was to prove infidelity. Here are the key points.

Issue

Does secretly recording a conversation between two other people, even where the recording is gathered to expose a spouse’s infidelity and later submitted as evidence in civil litigation, constitute a criminal violation of the Protection of Communications Secrets Act?

Facts

  • A suspected that his spouse, B, was having an affair with C.
  • In December 2024, A attached a small recording device to B’s clothing and body without her knowledge.
  • B subsequently met with C, and the device captured a conversation between B and C inside C’s vehicle — a conversation A was not a party to.
  • In January 2025, A filed a civil damages lawsuit against C, attaching a transcript prepared from the secret recording as supporting evidence to the complaint.

Rule

  • The Protection of Communications Secrets Act prohibits recording conversations between others without consent, and separately prohibits disclosing or using such recordings, regardless of the recorder’s underlying purpose or motive.
  • These prohibitions apply categorically — they are not excused by good intentions, such as gathering evidence of a spouse’s infidelity.

Court Decision

  • The Suwon District Court, Seongnam Branch (Criminal Division 1, Presiding Judge Kim Gyeong-hun) convicted A and sentenced him to six months in prison, suspended for one year, on April 9, 2026.
  • The court held that secretly recording a conversation between other people and subsequently disclosing it constitutes a criminal violation of constitutionally protected privacy rights, regardless of the recorder’s motive. The court explicitly rejected the idea that a legitimate purpose — such as proving an affair — could excuse or mitigate the fundamentally invasive nature of the act.
  • The court also noted that C had not forgiven A for the intrusion, a factor weighing against leniency.
  • In mitigation, the court considered that A’s actions arose from his spouse’s own infidelity — providing some context for his conduct — and that the actual content of the recorded conversation was not found to involve a severe degree of privacy intrusion.

Key Takeaways

  • Secretly recording a conversation between two other people is a criminal offense under Korean law regardless of motive. Suspecting or even confirming a spouse’s infidelity does not create an exception.
  • Submitting an illegally obtained recording as evidence in civil litigation does not insulate the recorder from criminal liability for the underlying recording and disclosure — and may itself constitute the act of “disclosure” that completes the offense.
  • This ruling sits alongside the broader trend in Korean courts distinguishing between the criminal prohibition on recording (categorical and strict) and the separate question of whether such evidence can be used in civil proceedings (subject to a balancing test). The criminal prohibition applies even where the civil evidentiary question might be resolved in the recorder’s favor.
  • Mitigating factors such as the spouse’s own wrongdoing and the relatively mild content of the recording can reduce the sentence, but they do not eliminate criminal liability.

Why This Matters

This case reinforces a critical distinction for people contemplating self-help evidence gathering in suspected infidelity situations: secretly recording your spouse’s conversations with a third party is a crime in Korea, full stop — even if your suspicions turn out to be correct, and even if you intend to use the recording only for a civil claim. For practitioners advising clients in divorce and affair-related litigation, this ruling is an important caution to give before any covert recording begins, not after the evidence has already been gathered and used. The case also illustrates that filing the recording in court can itself trigger additional criminal exposure for unlawful disclosure, compounding the risk of the original recording.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=222547

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