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Aug 2, 2011

One Flew over the Cuckoo’s Nest and the Apple Saga in Korea

Over 27,000 iPhone users have filed a suit against Apple over the collection of location data of users of the iPhone in Korea.

Mirae Law, a small law firm near the port city of Pusan is, according to their website, charging clients KRW 9,000 (USD 8.50) plus 20% of the recovered sum for representation in the matter. The clients are, also, required to pay a small court fee.

It is great to see that more Korean law firms are becoming creative and aggressive and that lawyers in Korea are also focusing on the needs of non-business clients, however, the merits of the case are peculiar at best and the passive action by Apple is even more peculiar.

The potential damage to Apple is not only c. USD 25 million, but, also, its business reputation. The law firm may earn in legal fees over USD 5,000,000 for the service of filing the suit and making a website with a decent data entry system.

Since, Apple never responded to the first lawsuit (Demand for Payment)  filed by the Firm, (peculiar) a form of a default judgment was granted. Thus, Apple never made the strongest argument that they could have made – the lack of quantifiable damages. This argument would have gone a long way in other cases and would have likely killed the media’s interest in the case.

What are the damages for Apple collecting our locations? Ok, they may have known that I spend too many weekdays eating dinner at Johnny Rockets, but how is that damaging to me? I suspect I will visit my old rocket friend Johnny today.

The first “test” suit that the Korean law firm won claimed, in short, that Article 17 of the Korea Constitution guarantees the right to privacy and that the right to privacy was violated by the storing of the location data. The court calculated the psychological damages at KRW 200,000 won per month for the five months of the use of the iPhone.

I hope Korean law schools will begin to teach the concept of State Action. I even had a hard time explaining this to those working for the Constitutional Court of Korea when I worked at the Court.

Too many Korean lawyers and even professors believe that the Korean Constitution's main purpose is to not only restrain the actions of the government, but also restrain the actions of the people. This is not the intent of the Constitution and this poses a danger to the future of the protections accorded by the Constitution.

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SeanHayes@ipglegal.com