A Tainan resident who recorded the sound of his upstairs neighbor having sex to prove to his landlord that the building had poor soundproofing has been found not guilty of offenses against privacy.
The man, surnamed Wu (吳), rented an apartment near Chang Jung Christian University.
Upset that he could hear noises from the third floor while standing in the second-story stairwell, Wu used his smartphone to record the sound for his landlord.
Photo: Tung Chen-kuo, Taipei Times
After learning about the recordings, the neighbor, surnamed Chao (趙), felt their privacy had been violated and filed a lawsuit against Wu.
The Tainan District Prosecutors’ Office subsequently charged Wu with recording private activities without a legitimate reason.
The Tainan District Court on Tuesday last week ruled that provisions in the Criminal Code regarding offenses against privacy strictly protect “activities, speech, conversations or private body parts.”
While an average person might associate “sounds coming from the throat” with sexual intercourse, a sound is ultimately not the activity itself, the ruling said.
Based on the principle of legality, the scope of what constitutes an object of secret recording cannot be expanded to include mere sounds, it added.
The ruling highlighted the idea of “objective privacy.”
A prerequisite for proving privacy infringement is that the people involved must ensure their environment is private, it said.
The landlord testified that the building’s poor soundproofing allowed the sounds to be heard clearly from the third floor down to the stairwell on the second floor, which indicated a lack of adequate privacy measures.
Wu recorded the sounds while standing in a public area and did not place his phone inside the room or press it against the gap in the door, making it difficult to establish that he had any intent to secretly record them, the court added.
After reviewing the evidence, the court concluded that Wu’s actions in gathering evidence of noise did not meet the legal criteria for offenses against privacy, finding him not guilty.
When reached for comment, lawyer Lin Yu-hung (林育弘) said: “If you do not take precautions to protect your privacy and are exposed, a lawsuit for invasion of privacy will likely fail.”
The legal threshold for protecting privacy is extremely high, Lin said, adding the courts not only examine whether the victim had a subjective desire to keep the matter private, but also strictly assess whether they created an objectively private environment.
If a person does not take precautions to avoid exposing their private lives to the public, it would be difficult to secure a conviction, even if their images or voices are recorded, he added.
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