Article 11 of the Constitution guarantees the people’s freedom of speech for the purposes of ensuring the free flow of opinions and giving the people the opportunities to acquire sufficient information and to attain self-fulfillment. Such protected speech may be political, academic, religious or commercial speech and, depending on the nature of the speech, the scope of protection and restraints may differ. In the case of commercial speech, if the information contained therein, which is provided for the purpose of lawful business and may help the consuming public to make economically sound decisions, is not false and misleading, it should then be subject to the constitutional protection of the freedom of speech. Nevertheless, the constitutional guarantee is not absolute. To the extent that Article 23 of the Constitution is complied with, the lawmakers may impose adequate restrictions by enacting clear and unambiguous laws. The foregoing has been made clear by this Court in J.Y. Interpretations Nos. 414, 577 and 617.
The information that induces people to engage in unlawful sexual transaction is a form of commercial speech that induces people to engage in sexual intercourse or obscene acts for a consideration (See Articles 2 and 29 of the Child and Juvenile Sexual Transaction Prevention Act). As for other speech that describes sexual transaction or relates to the study of sexual transaction, since it does not directly induce people to engage in sexual intercourse or an obscene act, it is not considered as the kind of information that induces people to engage in unlawful sexual transaction, which is subject to Article 29 of the Child and Juvenile Sexual Transaction Prevention Act, regardless of whether any economic fruits are reaped from such speech. Since it constitutes an illegal conduct for a person to engage in sexual transaction with a child or juvenile or for a person who is eighteen years of age or older to engage in sexual trnsaction with another person eighteen years of age or older (see Articles 22, 23 and 24 of the Child and Juvenile Sexual Transaction Prevention Act; Article 227 of the Criminal Code; and Article 80 of the Social Order Maintenance Act), the information which induces a person to engage in such sexual transaction is information that induces a person to engage in an unlawful activity. Hence the legislators may impose reasonable restraints on such information as dictated by public interests.
As a child or juvenile is mentally and intellectually immature, engaging in sexual transaction with a child or juvenile is sexual exploitation of him or her. More often than not, the experience of sexual exploitation will inflict permanent and irrecoverable mental or physical damage on a child or juvenile while exerting a profoundly negative influence on the society. Therefore, to protect a child or juvenile from engaging in any unlawful sexual activity is a universally recognized fundamental right (see Articles 19 and 34 of the United Nations Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989, and implemented on September 2, 1990) and thus a significant public interest. Hence the State should be obligated to take appropriate measures to safeguard the mental and physical health and sound development of children and juveniles. Article 1 of the Child and Juvenile Sexual Transaction Prevention Act provides, “This Act is enacted for the purpose of preventing and eliminating the events where children and juveniles are treated as sexual objects.” The purpose of the law is rational and legitimate.
Article 29 of the Child and Juvenile Sexual Transaction Prevention Act as amended and promulgated on June 2, 1999, provides, “A person who spreads, broadcasts or publishes information in any advertisement, publication, broadcasting, television, electronic signals, computer network or any other media which may seduce, serve as a medium for, suggest or by any other means induce a person to engage in unlawful sexual transaction shall be punished with imprisonment for not more than five (5) years and, in addition thereto, may be subject to a fine of not more than NT$1,000,000.” By imposing punishment according to law on those who distribute information that induces people to engage in such sexual transaction, the foregoing provision is intended to outright eliminate the sexual exploitation of children and juveniles. Therefore, there is a crime where any information that induces a child or juvenile to engage in sexual transaction is distributed whose content includes child and juvenile sexual transaction, irrespective of whether sexual transaction occurs in actuality, because a child or juvenile is in danger of becoming the object of sexual transaction. Besides, in the case of information whose content does not include child or juvenile sexual transaction or inducement of same to engage in sexual transaction, a child or juvenile is nevertheless in danger of becoming the object of sexual transaction because it is widely distributed to children and juveniles under eighteen years of age or the general majority of uncertain age, thus including or potentially including children and juveniles under eighteen years of age in the group that may be seduced by such information. Therefore, a crime will result once such information is distributed regardless of whether unlawful sexual transaction occurs in actuality. However, if an actor objects to the truthfulness of the indicated facts presented by the prosecutor in proving the actor’s violation of the aforesaid law and, in so objecting, has proved that the information distributed by him or her neither contains child or juvenile sexual transaction nor is intended to induce children or juveniles to engage in sexual transaction and necessary precautionary measures have been taken to limit the recipients of such information to those who are eighteen years of age or older, such conduct will not be subject to the said provision because neither a child nor a juvenile is in danger of becoming an object of sexual transaction.
To protect children and juveniles from being sexually exploited due to engaging in any unlawful sexual activity is a universally recognized fundamental right which should be treated as a significant interest to be legally protected by the State. By imposing criminal punishment, the aforesaid provision is designed to outright eliminate sexual exploitation of children and juveniles by means of eliminating the information that induces people to engage in unlawful sexual transaction. As such, it is an effective means to achieve the legislative purpose of deterring and eliminating the cases where children or juveniles become objects of sexual transaction. Furthermore, in light of the significant state interest in protecting a child or juvenile from engaging in any unlawful sexual activity as contrasted with the restraints imposed by law on the rights and interests of those who provide information regarding unlawful sexual transaction, the aforesaid provision does not go beyond the necessary and reasonable scope by imposing criminal punishment to achieve the legislative purpose of deterring and eliminating the cases where children or juveniles become objects of sexual transaction in that the law limits its application to the information whose content includes child or juvenile sexual transaction or inducement of same to engage in sexual transaction, or the distribution to children or juveniles who are eighteen years of age or younger or the general majority of uncertain age any information that may induce the average person to engage in unlawful sexual transaction. Therefore, it is not inconsistent with the principle of proportionality embodied in Article 23 of the Constitution. In addition, although the terms “seduce, serve as a medium for, suggest” as used in the law at issue are indefinite concepts of law, the meaning thereof is not incomprehensible to the general public or to those who are subject to regulation since it may be made clear by examining the literal meaning thereof and the construction of its legislative purposes, which may be ascertained through judicial review. Hence there should be no violation of the principle of clarity and definiteness of law (see J.Y. Interpretations Nos. 432, 521, 594, 602 and 617).
Article 29 of the Child and Juvenile Sexual Transaction Prevention Act provides for an offense of danger, whereas Articles 22, 23 and 24 of the said Act, Article 227 of the Criminal Code, as well as Article 80 of the Social Order Maintenance Act, provide for an offense of actual injury. As the two are different from each other in terms of their requisite elements and legislative purposes, it is difficult to compare the severity and methods of the respective penalties. Furthermore, it should be noted that, since there are different methods of obtaining information, including electronic signals, computer networks and such other media as advertisements, publications, broadcasting, television, etc., the competent authorities should design a classified management system if the readers and viewers can be strictly differentiated in light of the technological developments so as to comply with the principle of proportionality. In respect of the petition made by Judge Ho Ming-Huang of Taiwan Kaohsiung Juvenile Court, namely the Petitioner, which summarily claimed that Article 29 of the Child and Juvenile Sexual Transaction Prevention Act is in conflict with Articles 15 and 152 of the Constitution, the Petitioner merely mentioned that the law at issue has indirectly resulted in restraints on the people’s right of work or freedom of occupation but failed to present any argument pertaining to how it is contrary to said constitutional provisions. Hence there is hardly any concrete reasoning in the Petitioner’s objective belief in the unconstitutionality of the law.
*Translated by Vincent C. Kuan.