SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
3.11 Other Fact-Finding In addition to interviews, investigations often involve a review of relevant documents and a digital foren - sic review of emails and other electronic data. Digital forensic review is not always undertaken, but in cer - tain cases especially those involving financial or busi - ness misconduct and trade secret misappropriation, it can often be the only way to uncover meaningful evidence. Reviewing employees’ emails or computer data is considered subject to Korean data privacy protec - tions. Korea has very strict data privacy laws, and employees are generally considered to have privacy rights in personal information contained in their work emails and files. To avoid violating data privacy laws, it is customary to have employees complete a data privacy consent form before reviewing their emails and files, thereby allowing the collection of personal information from those sources. Whether to conduct a non-consensual review of emails and files in an investigation is often an important issue that requires careful legal analysis, given Korea’s strict data privacy laws. To warn against the deletion of electronic evidence, companies may send preservation notices to relevant individuals, and to practically prevent the potential deletion of data, employers may place a relevant employee on garden leave while conducting a digital forensic review, where there is a strong suspicion of wrongdoing. Employers may also offer a leniency programme, under which the company agrees to reduce or forego any punishment for those who self-report certain mis - conduct and co-operate with any investigation. This can be useful in cases where employees are aware that the company has already disciplined others or otherwise appears to have evidence. 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter During investigations into alleged workplace har - assment or sexual harassment, the employer has a
ings could give rise to other types of civil claims for violations of privacy rights, depending on the circum - stances. Collecting information via an interview, including by recording it, may also generally constitute the collec - tion and processing of personal information. Collect - ing and processing personal information generally requires informed consent, or an applicable excep - tion, under Korean data privacy laws. In practice, recordings are often made to verify the accuracy of interview notes if they are later disputed. Due to the potential for disputes, it will generally be prudent to notify the interviewee of the recording and refrain if the employee does not consent. Absent a recording, an employer should rely on other means to establish the accuracy of the interview record, such as signed interview notes and/or a second interviewer. There is no explicit legal ground requiring that an inter - view transcript be provided to anyone. In practice, interview recordings and transcripts are not shared with interviewees, though an interviewee may be allowed to review them upon request. Employees have a right under Korean data privacy laws to inspect their personal information possessed by the employer. However, this right is subject to limitations, and an employer may decline to disclose sensitive informa - tion collected during an investigation on the basis of confidentiality concerns. In some cases, employers have internal provisions/ policies that prohibit employees from recording inter - views and failure to comply can be grounds for disci - plinary action. In practice, it would be difficult to verify whether the employee is not recording, even if the interview takes place in person (which would make it virtually impossible to deter one from recording). However, giving a clear warning at the outset of the interview that it must not be recorded may deter the employee from doing so. Even if such a warning is issued, the recording will likely still be admissible as evidence in a dispute, though the employee may face disciplinary action or liability for civil damages.
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