Case News
The TCC delivers its Judgment 113-Hsien-Pan-3 (2024)
TAIPEI, May 2— The Taiwan Constitutional Court (TCC) delivered its Judgment of the "Case on the Criminalization of Public Insult I" on April 26, 2024.
Principal Facts, Issues, and Procedure of the Case
Article 309, Paragraph 1 of the Criminal Code stipulates: "A person who publicly insults another shall be sentenced to short-term imprisonment or a fine of not more than nine thousand dollars." A question arises as to whether imposing criminal punishment for public insults is compatible with the constitutional protection of freedom of speech.
There are 24 petitioners in this case, half of whom are people who were found guilty finally by criminal courts under the disputed provision, and the other half are judges (or court panels) who questioned the constitutionality of the provision when hearing public insult cases. The petitioners argued that: (1) The term "insults" in Article 309, Paragraph 1 of the Criminal Code is unclear, thus violating the principle of clarity and precision of legal provisions; (2) A speech would not harm the reputation. A speech being found insulting only reflects the subjective judgment of the listener; (3) criminal measures are not the least restrictive means to protect the right to reputation; and (4) the disputed provision may lead to a chilling effect on freedom of speech. In addition, some of the petitioners also filed constitutional complaints against the final court decisions in which they were convicted for the offence under the disputed provision.
This case was argued on December 25, 2023. Judgment 113-Hsien-Pan-3 (2024) was announced on April 26, 2024. Justice Jau-Yuan HWANG wrote this Judgment. Two concurring opinions and one opinion dissenting and concurring in part were filed.
Decision of the Court
The TCC upheld the constitutionality of Article 309, Paragraph 1 of the Criminal Code, ruling that the provision is proportionate and does not violate the freedom of speech.
The TCC elaborated that "(public) insult" punishable by the disputed provision entails, in the context of individual cases, (1) insulting speeches that are given publicly and purposefully to hurt another's reputation to the extent that has exceeded what a general person could reasonably tolerate; and (2) under the balance of interest between the offender's freedom of speech and the victim's reputation, the latter is more worthy of protection. The TCC ruled that the provision does not violate the principle of clarity and precision of legal provisions.
In its reasoning, the TCC pointed out that a speech merely being offensive should not be punishable under this provision. What should be punishable is the speech that undermines other's equal status, especially when the speech targets structurally vulnerable groups, such as specific ethnic group, sexuality or gender. Furthermore, short-term imprisonment can only be imposed for severe cases, such as online insults that cause continuous, accumulative, viral harm to the victims.
The TCC quashed the final court decisions of Petitioners IX to XII and requested the courts of jurisdiction to reconsider the cases under the scope of this Judgment.
Notes:
- Full texts of the Judgment and Opinions are available on the TCC website here (Traditional Chinese). An English summary of this Judgment will be available later on the TCC English website.
- The TCC's Case News is prepared by the Department of Clerks for the Constitutional Court (Judicial Yuan) for information only and does not bind the Court.
- In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.