I. Summary of Petitioners’ Statements
Petitioners 1 to 4 each asserts that the provision of Article 195, Paragraph 1, Second Sentence of the Civil Code, which states that "... A person whose reputation has been damaged also has the right to seek appropriate measures to restore the reputation." (hereinafter referred to as the provision at issue), allows a court to render a judgment ordering the wrongdoer to make a compelled apology to restore the reputation of another person, thereby infringing upon the freedom to not speak, right to personality, freedom of conscience, freedom of thought and human dignity, or freedom of the press of the Petitioners. This may also raise doubts as to whether it is in conflict with Articles 11 and 23 of the Constitution, so they assert that Judicial Yuan Interpretation No. 656 (hereinafter referred to as the Interpretation at issue) should be amended. For other claims, please refer to the petitions.
II. Grounds for Granting Review and the Court’s Proceedings
On August 12, 2015, Petitioner 1 filed a petition which met the requirements of Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act (1993) applicable at the time (see Article 90, Paragraph 1, proviso of the Constitutional Court Procedure Act for reference). The Justices of the Judicial Yuan (the Constitutional Court) accepted the Petition on October 9, 2019, and held a public hearing on March 24, 2020, inviting Petitioner 1, the Ministry of Justice as the competent authority of the Civil Code, and expert witnesses to express their opinions. The Constitutional Court also invited the Judges Association of Republic of China (Taiwan), the Taiwan Bar Association, and the Taipei Bar Association to express their opinions as amici curiae. After the above-mentioned public hearing, Petitioners 2 to 4 also asserted that the provision at issue, which was applied in their respective final judgments, is in violation of the Constitution and petitioned for a declaration of unconstitutionality. The Constitutional Court accepted the petition of Petitioner 2 on August 12, 2020, the petition of Petitioner 3 on June 30, 2021, and the petition of Petitioner 4 on December 30, 2021. Because the petitions concerned the same object of review, they were consolidated for review and judgment with Petitioner 1's petition. After considering the petitions and statements from all parties during the public hearing, this Judgment is made with the following reasoning.
III. Legal Grounds for the Holdings
1. A court judgment ordering a wrongdoer to apologize violates the constitutional guarantee of freedom of speech
Article 11 of the Constitution protects the positive freedom of expression and the negative freedom of non-expression of the people, the content of this protection includes the expression of subjective opinions and the statement of objective facts (see Judicial Interpretation No. 577 for reference). If the laws of a country compel people to express their subjective opinions or state objective facts, it interferes with people's freedom as to whether and how to express oneself. This constitutes a restriction on people’s freedom of speech. Although the state is not prohibited from restricting the freedom of non-expression according to the law, since there are many reasons for non-expression, when the wrongdoer is a natural person, it may involve inner beliefs and values such as morality, ethics, justice, conscience, and faith, which are related to people's inner spiritual activities and right to autonomy. It is indispensable for the protection of personal subjectivity and the complete development of personality freedom, and it is closely related to the maintenance of human dignity (see the Interpretation at issue for reference).
Article 195, Paragraph 1 of the Civil Code provides that "if a person has wrongfully harmed another person’ s the body, health, reputation, freedom, credit, privacy, chastity, or wrongfully harmed other personality rights, if the circumstance is serious, the injured person may claim an appropriate amount of compensation for non-property damages. A person whose reputation has been damaged also has the right to seek appropriate measures to restore the reputation." This is a non-property damage compensation provision for infringing upon others' personality rights such as reputation. The latter part of the provision (i.e., the provision at issue) stipulates "appropriate measures to restore the reputation," which, according to legislative intent and past court precedents, in addition to allowing, to a reasonable extent, the wrongdoer to bear the cost of publishing a statement clarifying the facts, posting a notice of the victim's favorable judgment, or publishing all or part of the judgment in a newspaper to restore the victim's reputation, also includes the measure of a compelled apology by ordering the perpetrator to publicly apologize in the judgment. The Interpretation at issue also holds the same position in this regard, but by means of a restrictive constitutional interpretation limits the above-mentioned measure of compelled apology to "situations that do not involve self-degradation or other violations of human dignity of the wrongdoer" in order to be constitutional.
The approach of balancing conflicting fundamental rights was adopted in the Interpretation at issue, which holds: “regarding certain cases of infringement of reputation, where it is necessary to restrict the wrongdoer’s freedom of non-expression so as to restore the victim’s reputation, appropriate decisions should be made by carefully considering the severity of the unlawful infringement of personality rights and the content of mandatory expression, in order to comply with the proportionality principle established by Article 23 of the Constitution.” However, when the state prohibits people from actively expressing themselves, people are still able to remain silent. The measure of forcing public apologies further prohibits silence and forces expression, to the extent that people must make self-denying statements, its interference with freedom of expression is obviously more intense. Furthermore, allowing the state to compel people to express specific content, even specifying the time, place, and manner of expression, necessarily involves censorship of speech content. Moreover, forcing public apologies directly interferes with people's autonomous decisions on whether and how to express their opinions or values, rather than just objective statements of fact, which is clearly an interference with high-value speech content. Additionally, legal persons, in addition to natural persons, can also be subjects of constitutional freedom of speech (see Judicial Yuan Interpretation Nos. 577 and 794 for reference). Whether the wrongdoer is a natural or legal person, the mandatory public apology will interfere with their autonomous decision-making regarding freedom of speech as to whether and how to express themselves. In the case of the wrongdoer being a news media (including various types of organization, such as institutional or individual media), it may even interfere with their freedom of the press, thereby affecting the important functions of news media in strengthening democracy, public discourse, and other important functions. Therefore, the provision at issue should be subject to strict scrutiny, meaning that its legislative purpose must be to pursue a particularly important public interest and the means must be indispensable to achieving its legislative purpose with no less restrictive alternative available, so as to comply with the constitutional guarantee of freedom of speech for the people.
Regarding the wrongdoers who have harmed the reputation of others, when they recognize their mistake, their voluntary and sincere apologies to the victims, regardless of expressing their guilt or shame, are all expressions of empathy for the harm suffered by the victims. This can give the victims spiritual comfort and make them feel respected and gain a sense of security, thereby rebuilding their trust in others. Through apologies, social common values can be declared, thereby rebuilding harmony between both parties and within the society. Therefore, when wrongdoers recognize their mistakes, they should apologize sincerely to the victims without waiting for a court judgment compelling an apology. Given the positive psychological, social, and cultural functions of apologies, the state may also encourage or advise wrongdoers to apologize to victims in order to settle disputes and restore harmony. The provision at issue is aimed at protecting the reputation of the victims to safeguard their personality rights. Since monetary compensation may not be able to fill or restore the harm, the court is authorized to decide appropriate punishments to restore the victim's reputation, which is a legitimate purpose. However, the circumstances in cases of infringement of reputation are diverse. Some of them are only disputes between private parties and with no impact on either third parties or public interests. Therefore, it is not without doubt whether the legislative purpose of filling or restoring the victim’s reputation categorically constitutes a particularly important public interest.
In terms of the restrictive means, Article 195, Paragraph 1, First Sentence of the Civil Code stipulates that monetary compensation is the main method of filling the non-property damage suffered by the victim. Although the "appropriate measures to restore the reputation" referred to in the provision at issue is also an indispensable remedy, its purpose is still to compensate for the damage suffered, not to further punish the wrongdoer. Furthermore, the scope of the above-mentioned appropriate measures, which must not involve self-degradation or other violations of human dignity of the wrongdoer (see the Interpretation at issue for reference), should also be moderately restricted in accordance with the constitutional protection of freedom of speech. The court should therefore adopt an appropriate method of punishment that is sufficient to restore reputation and causes less harm, such as having the wrongdoer, to a reasonable extent, bear the cost of publishing a notice of the judgment in favor of the victim or other alternative means such as publishing all or part of the judgment in the mass media, rather than imposing the clearly more harmful mandatory apology.
By publishing a notice of the judgment in favor of the victim or the court's judgment to the public, the general public can know that the court has determined that the defendant has acted to harm someone's reputation, which helps to compensate for the damage suffered by the victim without infringing on the defendant's freedom of expression. In the process of trial or in the reasoning of the judgment, the court can also encourage or motivate the wrongdoer to apologize to the victim. If the wrongdoer admits the mistake, he can sincerely apologize to the victim without waiting for the court to force him to do so. On the other hand, if the court renders a judgment ordering the wrongdoer to apologize to the victim and allows the victim to publish a notice of apology in the wrongdoer's name and to have the wrongdoer bear the cost (see Article 127, Paragraph 1 of the Compulsory Enforcement Act), it is no different from allowing the victim to act in the wrongdoer’s name, thereby violating the wrongdoer's autonomy of speech. For the wrongdoer, an apology that does not come from personal sincerity is not an apology, but an apology given against his will. For the victim, there is also doubt as to whether such an insincere apology has a positive function in compensating for the damage suffered. Therefore, a court judgment ordering the wrongdoer to publicly apologize, whether the wrongdoer is a natural person or a legal person, even without involving self-humiliation of the wrongdoer or otherwise harming human dignity, is clearly not an indispensable means with the least infringement, and violates the constitutional protection of freedom of speech.
2. When the wrongdoer is a natural person, a court judgment ordering them to apologize violates the constitutional protection of freedom of thought. 【13】
Freedom of thought protects the inner spiritual activities of the people, such as conscience, thinking, and ideals, which are the foundation of human civilization and the basis of freedom of speech. It is also the most basic human dignity that the Constitution seeks to protect and must be absolutely safeguarded, and cannot be violated by any means of the state. Judicial Yuan Interpretation No. 567 thus clearly states: “… even in a state of emergency, even if it is authorized by law, no matter what means of infringement, whether it is forced expression or even rehabilitation, it is not allowed and is the minimum human right protection that cannot be violated.” Therefore, even in a state of emergency, the state is not allowed to force people to express themselves in the name of coping with the emergency. In normal times, it is further beyond doubt that the legal system cannot force people to express themselves for the reason of pursuing other purposes (such as protecting reputation rights etc.) to safeguard people's freedom of thought.
Forcing an apology is forcing people to express something that goes against their true will and to make expression that is inconsistent with their conscience, values, and beliefs. Whether or not an individual is willing to sincerely admit fault and apologize to others is related to their inner beliefs and values. When the wrongdoer is a natural person, forcing an apology not only directly restricts people's negative freedom of speech, but also intervenes in the inner spiritual activities and value judgment of individuals' conscience and beliefs, which is freedom of thought. Such a demand prohibiting silence and forcing expression has turned the legal judgment of the court into the wrongdoer's moral judgment of himself, resulting in negative effects of self-denial or even self-humiliation, inevitably damaging the inner thoughts, conscience, and human dignity of the apologizer, and thus violating the constitutional protection of a natural person’s freedom of thought.
When the wrongdoer is a legal person, because a legal person cannot claim freedom of thought or conscience, forcing the legal person to apologize publicly does not involve freedom of thought. It is hereby pointed out.
3. The Conclusion of the Court’s Judgment
In summary, the provision at issue allows the court to render a judgment ordering the wrongdoer who harmed another person’s reputation to publicly apologize, regardless of whether the wrongdoer is a natural person or a legal person, and even when it does not involve self-humiliation or other situations that may damage human dignity, thus violating the intention of the constitution to protect people’s freedom of speech. Moreover, when the wrongdoer is a natural person, the provision at issue is further inconsistent with the constitutional protection of freedom of thought. Therefore, the “appropriate measures” referred to in the provision at issue should not include the situation where the court renders a judgment ordering the wrongdoer to publicly apologize, so as to comply with the intention of the Constitution to protect people’s freedom of speech in Article 11 and to protect freedom of thought in Article 22. Within this scope, the Interpretation at issue should also be amended.
Petitioners 1 to 4 are entitled to file a motion for retrial within 30 days from the date of service of this Judgment in accordance with Article 91, Paragraph 2, First Sentence of the Constitutional Court Procedure Act (see J.Y. Interpretation No. 800 for reference). According to Paragraph 3 of the same Article, the period from the date each petition was lodged with the Constitutional Court until the date this Judgment is served on the petitioners shall not be counted towards the 5-year retrial period specified in Article 500, Paragraph 2 of the Code of Civil Procedure. It is hereby pointed out.
Regarding the part of the final judgment of each original case that orders the Petitioners to publicly apologize, if it has not been carried out by the time of the above-mentioned retrial judgment and the retrial judgment orders other appropriate measures (such as publishing all or part of the judgment) other than the mandatory apology, the victim can request the execution. If the part of the underlying final judgment that orders public apology has been carried out, and although the wrongdoers can file a petition for retrial, the retrial judgment may in accordance with this Judgment at the victim's request order other appropriate measures to restore the victim's reputation, and revoke those parts that go beyond other appropriate measures as mentioned above (the part of the final judgment that ordered the wrongdoer to publicly apologize). However, in order to avoid causing the victim a second injury, the provision of Article 505-1 of the Code of Civil Procedure shall not apply, and the victim shall not be ordered to restore the status quo ante before the execution (such as publishing a notice of revocation of the public apology). Furthermore, considering that the actual effect of mandatory apology is stronger than other appropriate measures, in order to achieve a balance of interests between the wrongdoer and the victim, the other appropriate measures mentioned in the retrial judgment shall not be enforced, so that the dispute between the two parties can be ended as soon as possible.
As to the laws and regulations that require state agencies or public officials who exercise public power to apologize to victims, or allow prosecutors or judges to order defendants to apologize to victims in criminal proceedings, such provisions are not under review within the scope of this judgment. This is hereby stated.
4. Regarding the part to be reviewed in separate proceedings
Petitioner 1 filed a request to interpret the Constitution regarding the application of Article 309, Paragraph 1 of the Criminal Code in the Taiwan Kaohsiung District Court Criminal Judgment 102-Chien-Shang-451 (2013). Since the object of review of this request is different from that of the present Judgment, and the issues are different, it shall be reviewed separately (see Article 24, Paragraph 2 of the Constitutional Court Procedure Act for reference), and this is hereby stated.