Article 11 of the Constitution stipulates that the people’s freedom of speech shall be protected. Given that the freedom of speech carries the functions of self-fulfillment, communication of viewpoints, pursuing truth, gratification of the people’s right to know, formation of public opinions and promotion of all kinds of rational political and social activities, thus constitutes an essential mechanism in the maintenance of the normal development in a democratic and diverse society, the State must endeavor to provide protection to the maximum extent (see J.Y. Interpretation No. 509). The safeguard of freedom of speech as such also includes the protection over the freedom of communications and broadcasting, that is, the people’s freedom to access information and express opinions through the utilization of radio broadcasting, television or other means of communications or networks (see J.Y. Interpretation No. 613). However, the constitutional safeguard over the freedom of speech and the methods of its communications is not absolute and should offer different scope of protection and guidelines of limitations based on the nature therein. Thus it is not that the State may not impose justifiable restrictions by the enactment of laws [as long as they are] in compliance with the meanings and scope of Article 23 of the Constitution (see J.Y. Interpretation No. 617).
The front portion of Article 48, Paragraph 1 of the Telecommunications Act stipulates: “The Ministry of Transportation and Communications (MOTC) shall regulate radio frequency, power, mode of transmission, radio station identification signals and call signs, and other radio wave related matters; permission from the MOTC must be obtained for operation or alteration of radio wave related matters.” (In accordance with Article 2 of the National Communications Commission (NCC) Organic Act, as of February 22, 2006, the date of the NCC’s establishment, related laws and regulations concerning communication and broadcasting, including, among other things, the Telecommunications Act, that were heretofore under the governing authority of the Department of Transportation but involved with the jurisdiction of the NCC, were to be transferred to the NCC.) Article 58, Paragraph 2 of the Telecommunications Act sti[ulates: “Anyone who arbitrarily uses or alters radio frequency in violation of Paragraph 1 of Article 48 without authorization shall be penalized with detention, and/or a fine of not more than NT$200,000.” Article 60 of the same Act further provides that violators of Article 58, Paragraph 2 shall resulted in the telecommunications equipment being confiscated regardless of ownership. By the same rule, the use of radio frequency, in accordance with Article 48, Paragraph 1 of the Telecommunications Act, is subject to the prior approval of the governing authority, and, in the event of violation, the penalty of detention, fine and confiscation of the equipment(s) in accordance with Article 58, Paragraph 2 and Article 60.
Radio frequencies are public resources that belong to all nationals. In order to prevent usage interference and to ensure efficient and harmonious usage so as to maintain the order of wave usage, public resources and to enhamce important public interest, the government must naturally manage with appropriate caution. Taken the above into consideration, the legislative body stipulates in Article 48, Paragraph 1 of the Telecommunications Act that the people’s use of radio frequency shall be subject to prior approval. The purpose of such legislation is appropriate. While this regulation restricts the freedom of communications concerning the usage of radio frequency, in light of protecting the licensed users* rights and interests, preventing interruptive interferences and maintaining the orderly usage of radio wave and the safety of radio communications (see Article 18 of the Radio Regulations of International Telecommunication Union and Article 109 of the United Nations Convention on the Law of the Sea), and in balance, the restrictive measures under this provision is necessary and helpful in achieving the above-stated purposes, and do not contradict the principle of proportionality or the protection of free speech under Article 11 of the Constitution.
To fulfill the pre-approval system under the front protion of Article 48, Paragraph 1 of the Telecommunications Act, Article 58, Paragraph 2 of the same Act provides that anyone who arbitrarily use or alter radio frequency without authorization shall be penalized with detention, and/or a fine of not more than NT$200,000. The legislators consider the act of unauthorized and arbitrary use of radio frequencies a violation of the license system and the measure of administrative penalty is not sufficient to achieve the legislative purpose of maintaining the order of radio frequency usage as well as thoroughly and effectively banning the illegal usage activities (see the Legislative Yuan Gazette, vol. 88, no. 37, p. 248), thus stipulate criminal penalty as the measure of control, which does not contradict the principle of proportionality under Article 23 of the Constitution. As to Article 60 of the Telecommunications Act, which stipulates that the telecommunication equipment used in violation of Article 58, Paragraph 2, regardless of ownership, shall be confiscated, is intended to prevent repeated unlawful use with the same equipment at different locations after the [initial] ban and is meant to prevent recidivism. Furthermore, radio transmitters or other devices used by radio stations to transmit radio frequencies are controlled goods that cannot be possessed or used at will (see Article 49, Paragraph 1 and Article 67, Paragraphs 3 and 4 of the same Act). Therefore, the confiscation regulation under Article 60 for violation of Article 58, Paragraph 2 contradicts neither the principle of proportionality under Article 23 of the Constitution nor the protection of people’s property rights under Article 15 of the Constitution.
The State should allocate radio frequencies fairly and reasonably to safeguard the freedom of expression under Article 11 of the Constitution. In light of the rapid research and development of radio communication technology, it needs to be pointed out that the governing authority shall timely review the related regulations in tandem with the condition of technology development.
Translated by Roger K. C. Wang