The Supreme Court rendered the 107-Tai-Shang-1096 Criminal Decision of May 3, 2018 (hereinafter, the “Decision”), holding that when records and data contained in a dashboard camera are obtained or used, the concept of respecting the privacy of others should still be entertained; and if the privacy of another party is wantonly invaded or violated under the pretext of suspicion or necessity of investigating the adultery of the spouse, it can hardly be concluded that there is any legal justification.
According to the facts underlying this Decision, the Appellant admitted that he had indeed without authorization obtained electromagnetic records from a dashboard camera installed in the car of another person and produced them as video recording materials submitted to the police as evidence, which was relied on to support his accusation that another person had allegedly committed an offense against family. The original decision concluded that the Appellant had committed an offense of obtaining electromagnetic records from relevant computer equipment of another person without justification. Dissatisfied, the Appellant appealed.
It was first pointed out in this Decision that a dashboard camera shows the path, conversations or activities of the user at that time and invariably involves an individual’s private space and self-control of personal data. Therefore, the concept of respecting the privacy of others should still be entertained concerning how such records and data are obtained and used. Nowadays, illegal acts that undermine the marriage of others (such as adultery or fornication) are often engaged in secrecy, and it is difficult for victims to produce evidence due to the protection of privacy. However, allowing a party to assert factual claims and evidence is part of due process and demonstrates the litigation right of the people which is protected under the Constitution. As a result, potential conflicts may arise between the protection of a victim’s litigation right and the protection of the privacy of an illegal actor. The principle of proportionality under Article 23 of the Constitution (including principles of appropriateness, necessity and proportionality in a narrow sense) should serve as the examination standard to balance those rights. To be specific, it is necessary to weigh if the means taken can achieve the objectives; of all the means which can possibly achieve the objectives, the minimally infringing means should be chosen; and the objectives to be achieved and the means of use cannot fall out of proportion with the damage or burden so caused.
It was further pointed out in this Decision that the expression “without justification” with respect to an offense against computer security under Chapter 36 of the Criminal Code means that if a justified legal ground is lacking, it is necessary to generally consider factors such as the purposes of an act, conditions about the people, matters, time, places, and things at the time an act conducted, and the extent of interference and violation suffered by another person to reasonably determine if the impairment caused by the act exceeds a tolerable scope according to a general social construct. It is not true that justification can be established by the purity of the purposes or motives of an act. However, even though the husband and the wife are morally or legally obligated to each other in terms of fidelity and purity of marriage, still their personality is independent and separate and this does not mean that either of the spouses is necessarily required to give up his/her privacy right and is obligated to allow the other spouse to completely and freely monitor his/her daily lives or social activities in any place and at any time. If elements of a spouse’s private space such as non-public activities, speech or conversations are wantonly invaded or violated under the pretext of suspicion or necessity to investigate the adultery of the spouse, it can hardly be concluded that there is any legal justification. Without going through any legal channel and without authorization, the Appellant duplicated the electromagnetic records stored in the memory card of a dashboard camera and used such records as evidence to support the adultery allegation. This obviously violated the expectation of another person concerning the reasonable privacy for the non-public activities in the car.
It was also pointed out in this Decision that the “acquisition” of electromagnetic records of others under Article 359 of the Criminal Code (the offense of destroying electromagnetic records) refers to circumstances where the electromagnetic records of others are transferred to the actor through the use of a computer, including means of duplication. Therefore, with respect to behavioral patterns concerning “unauthorized acquisition” of electromagnetic records, even if the original owner is still in a state of controlling and holding the electromagnetic records, if the actor also obtains electromagnetic records at the same time with exactly identical content without any signal loss through duplication technologies associated with computer equipment, such offense is still constituted. Therefore, although the victim could still use the memory card in the dashboard camera after the Appellant had duplicated the electromagnetic records stored in the memory card in the dashboard camera without authorization and the electromagnetic records in the recorded video files were not impaired, still the Appellant was deemed to have committed the offense of “unauthorized acquisition” of electromagnetic records in relevant computer equipment of others, which is prohibited under Article 359 of the Criminal Code.
Based on the foregoing reasons, the Appellant’s appeal was rejected since this Decision concluded that the original decision was not illegal or erroneous, and that the appeal had failed to comply with relevant legal procedures.