Supreme Court: "Telecom Companies Must Submit Call Records When Requested by Courts"

Grand Plenary Session: "Cannot Refuse Submission Due to the Communication Privacy Protection Act"

The Supreme Court has ruled that communication records protected under the Act on the Protection of Communications Secrets are subject to document submission orders under the Civil Procedure Act, and it is reasonable to impose fines if the submission order is not followed.

Supreme Court Grand Bench ruling scene. [Image source=Yonhap News]

The Supreme Court en banc (Presiding Justice Cheon Dae-yeop) on the 17th dismissed SK Telecom's rehearing petition against the court's fine imposed for non-compliance with the document submission order.

The en banc held, "Communication fact verification data is subject to document submission orders, and telecommunications service providers cannot refuse submission on the grounds of Article 3 of the Act on the Protection of Communications Secrets."

Article 3, Paragraph 1 of the Act on the Protection of Communications Secrets stipulates that, except in cases prescribed by the Act on the Protection of Communications Secrets, the Criminal Procedure Act, or the Military Court Act, mail inspection, telecommunications wiretapping, or provision of communication fact verification data cannot be conducted.

Article 13-2 of the same law specifies that courts may request communication fact verification data from telecommunications companies according to the Civil Procedure Act or the Criminal Procedure Act when necessary for trials, and Article 15-2 requires telecommunications companies to cooperate with requests for communication restriction measures and provision of communication fact verification data executed by prosecutors, police, or heads of intelligence investigation agencies under the Act on the Protection of Communications Secrets, although this is not a mandatory provision.

The issue arose from a conflict between Article 344 of the Civil Procedure Act, which allows courts to order the submission of documents necessary for trials and imposes fines if the document holder refuses without justifiable reasons, and the Act on the Protection of Communications Secrets.

Mr. A, in a divorce and parental rights lawsuit, claimed his husband's infidelity and applied for the court to order SK Telecom to submit the husband's call records as evidence. In August 2016, the court issued a document submission order to SK Telecom, but SK Telecom refused, stating, "Providing call record data is not stipulated as a cooperation obligation under the Act on the Protection of Communications Secrets," and "Data can only be provided upon a search and seizure warrant request."

Subsequently, the court imposed a fine of 5 million KRW on SK Telecom. SK Telecom opposed this with an objection and an immediate appeal, but the appellate court also upheld the fine. SK Telecom filed a rehearing petition, bringing the case to the Supreme Court.

The en banc ruled, "It is not contrary to the legislative purpose nor an excessive interpretation to understand that communication fact verification data can be provided pursuant to a document submission order issued through a stricter legal procedure than an investigation request."

However, it added, "When the court issues a document submission order for communication fact verification data, it must strictly weigh the legislative intent of the Act on the Protection of Communications Secrets, balancing the secrecy and freedom of communication and conversation with the necessity and relevance for a fair and prompt trial."

On the other hand, Justices Ahn Cheol-sang, Min Yoo-sook, Noh Jeong-hee, and Oh Seok-jun dissented, stating, "The court cannot issue a document submission order for communication fact verification data, and even if such an order is issued, telecommunications service providers can refuse submission citing the Act on the Protection of Communications Secrets."

This content was produced with the assistance of AI translation services.