With the advancement of technology, mobile phones and computers have long replaced traditional letters. Even everyday tasks such as ordering food, shopping, subscribing to magazines or books, or participating in various social media websites are often handled through mobile devices and other electronic equipment. As a result, mobile phones and computers are often filled with various forms of personal privacy and data.
Although in intimate relationships, people often associate "honesty" with love and may pressure the other person to share information, or even go as far as snooping through their phone or computer. However, regardless of the closeness between individuals, the law always treats them as independent persons with their own privacy rights. Unless exercising a legal right within reasonable boundaries, such as obtaining the other person's consent or authorization, unauthorized access could be illegal and result in civil or criminal liability.
For example, in the context of a marital relationship, court rulings have recognized that it is not uncommon for one spouse to answer or check calls or messages on the other person's phone when it is inconvenient for them, and then relay the information. The court also acknowledged that, in a marital household, the expectation of privacy regarding communication records or content on a phone placed at home differs from the privacy rights of the general public. Therefore, the court ruled that "in cases of adultery or marital infidelity, the victim's right to marital harmony,” the spouse's identity rights, and their right to protection through evidence collection conflict with the rights of the alleged adulterer or third party, such as their “privacy rights,” “freedom of communication,” and “image rights.” While family law recognizes the right to marital harmony and the identity rights of spouses during the marriage, it also acknowledges that unlawful acts that harm marital rights are often carried out in secret. Given the protection of privacy rights and the right to domicile, it is difficult for victims to gather evidence. Based on this, when the privacy rights of the wrongdoer conflict with the victim's right to sue, a certain degree of adjustment is necessary, and some degree of “evidence collection for infidelity” should be allowed."
The court has also ruled that "both spouses are obligated to uphold fidelity, which is a legal interest protected by law. Whether either spouse has violated this duty involves their respective privacy in daily life, and this privacy should be adjusted in the context of their mutual duty of fidelity." Additionally, the court stated that "the scope of a couple's life is highly intertwined, and mutual use of mobile phones, or one spouse answering or reviewing the other's phone, is part of their shared life. In this context, the expectation of privacy regarding mobile phones and similar data between spouses is clearly lower than the general expectation of privacy."
In short, the court held that when a spouse accesses the other's phone and takes pictures of stored messages, such as Line, text messages, or communication records, the invasion of privacy or secret communication is far less significant compared to the importance of the marital rights involved. Therefore, the court concluded that when a spouse infringes upon the other's privacy in order to investigate the other party, as long as it is within a reasonable scope, the "adultery evidence collection right" can justify the action, and the ambiguous messages obtained through such an invasion of privacy may still be used as evidence.
However, while such evidence may be used in civil cases, it may not necessarily be admissible in criminal cases. This is because secretly accessing a spouse's phone or computer messages, or using electronic devices to capture the content of those messages, could still violate provisions under the Criminal Code, potentially leading to criminal liability.
1. Violation of Privacy Offense
When an individual without justification uses methods such as photography, video recording, or audio recording to secretly listen in on another person's private activities, conversations, or discussions, and the individual does so intentionally, it could potentially constitute a violation of privacy offense under Article 315-1 of the Criminal Code.
But what exactly does “without justification” mean? What does “non-public” mean?
According to the court's interpretation, "non-public" refers to activities or conversations that the owner of the phone or computer subjectively does not wish to be made public, and has taken appropriate measures to ensure that these activities or conversations are not easily known to third parties. For example, closing the door while talking on the phone, or setting a password on the phone or computer, are considered such measures.
As for "without just cause," it refers to the absence of a legitimate legal reason. In terms of determining whether the reason is justifiable, according to the key points of court rulings, it is necessary to refer to the general principles of common life experience and assess the situation based on objective facts. Additionally, the appropriateness, necessity, and proportionality between the means used and the intended purpose must be considered.
In simple terms, when a privacy violation occurs, it is necessary to assess the purpose behind the privacy infringement. Does the method of infringement effectively achieve that purpose? If there are many ways to achieve the goal, has the person used the least invasive method? Additionally, is the damage caused by the method used disproportionate to the benefit gained from achieving the goal?
The challenge lies in the fact that there is currently no unified opinion in practice regarding whether the invasion of privacy by a spouse to investigate the other spouse's actions constitutes the meaning of "without legitimate reason." Some believe that infidelity is an extremely difficult matter for the other spouse to tolerate, and therefore, when a spouse secretly looks at or records the other spouse's conversations in order to investigate infidelity, it is considered to have a "legitimate reason" and not be "without legitimate reason." As a result, it would not constitute the crime of "invasion of secrets" under criminal law.
The Taiwan High Court's Criminal Judgment No. 815 of the year 2011 held that: "Any action that violates the marital duty of fidelity is, according to general experience, usually carried out in secrecy. The evidence for such actions is often extremely difficult to obtain. Therefore, when one spouse's actions objectively raise reasonable doubts about the purity of the marriage, even if the other spouse's motivation is to either “remove doubts about the purity of the t marriage” or “confirm that the other has violated the duty of fidelity,” any invasion into the other spouse's private domain (e.g. by eavesdropping or secretly recording private communications) should be considered a necessary effort to protect the marriage's integrity, rather than an act of “unjustified” violation of privacy under Article 315-1 of the Criminal Code."
For example, in the Taiwan High Court Kaohsiung Branch Court Criminal Judgment No. 863. of the year 2012, it was also held that: "When.. one spouse's actions objectively raise reasonable doubts about the purity of the marriage, regardless of whether the other spouse's motivation is to remove doubts about the purity of the marriage” or to “prove that the other person has violated the duty of marital fidelity any invasion into the other spouse's private domain (such as eavesdropping or secretly recording private communications) should be considered a necessary effort to protect the purity of the marriage"
Moreover, although spouses in a marriage should still maintain a certain degree of personal privacy during the course of their marriage, in order to achieve the objectives of marriage, some degree of compromise in their private domains should be made to align with the essence of the marital relationship. Especially when one spouse's violation of the duty of marital fidelity has already caused reasonable doubts in the other spouse, balancing the behavior that breaches the duty of marital purity, which could completely undermine the mutual trust between the spouses and shake the very foundation of the marriage, the right to protect the secret communications between the spouse with doubts about marital purity and third parties should be given greater weight.
Therefore, if one spouse's behavior objectively leads the other spouse to reasonably doubt the purity of the marriage, and the other spouse, motivated by the intention to "eliminate doubts about marital purity" or to "prove" the violation of the marital fidelity duty obtains evidence or preserves evidence for litigation purposes, even if a GPS satellite tracking device with GSM mobile phone monitoring functions is installed in the car to track and monitor the other spouse's movements and calls, considering the necessity and urgency of the means used, it cannot be said that there is no legitimate reason. Thus, this differs from the "without justification" as stipulated under Article 315-1 of the Criminal Code.”
However, the court ruled that: "While spouses do have an obligation to maintain loyalty to each other, which serves to protect the purity of the marriage both morally and legally, there is no duty for a spouse to accept constant surveillance by their partner. Therefore, the mere suspicion of infidelity or the act of investigating a spouse's behavior cannot justify the right to intrusively invade the other's privacy, and thus cannot be considered as constituting the crime of 'violation of secrets' under criminal law."
To date, there is still no consistent view in practice on this matter. To avoid breaking the law, even between spouses, it is best to refrain from secretly checking your partner's messages.
2. Crime of Obstructing Computer Use
In addition to Article 315-1 of the Criminal Code, which defines the crime of violation of secrets, Article 358 of the Criminal Code also establishes the crime of obstructing computer use. Particularly, if the owner of a mobile phone or computer has implemented appropriate security measures, and another person needs to access the information on that device by bypassing or disabling those security measures, it may constitute a legal violation.
The act of accessing the records on a mobile phone or computer by bypassing security measures without consent or authorization is currently considered a violation of Article 358 of the Criminal Code, which pertains to the crime of obstructing computer use.
Although there are still differing views in practice regarding whether one spouse can infringe upon the other's right to privacy based on mere suspicion, since spouses are independent individuals, each possessing the rights and obligations granted by law, they should not lose their original rights and duties simply because of the marriage or a close relationship.
Therefore, a spouse should not arbitrarily view the other's messages. If there are genuine doubts between spouses, they should still address the issue through proper means, such as open communication or seeking prior consent, in a mutually respectful manner, to handle the other person’s information and avoid breaking the law.
請參閱《美魔女律師教你生活不犯錯》 112-118頁