This summary constitutes no part of the Judgment but is prepared by the clerks of the Taiwan Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.
Original Case Assignment No.: Hui-Tai-12668
Consolidated Case Nos.: 110-Hsien-Erh-208, 110-Hsien-Erh-567, 109-Hsien-Erh-310.
Decided and Announced on February 25, 2022.
In this Judgment, the Taiwan Constitutional Court (hereinafter, the “TCC”) overturned its 2009 precedent of J.Y. Interpretation No.656 in part and declared court-ordered compelled apologies unconstitutional in applying Article 195, Paragraph 1, Second Sentence of the Civil Code. The TCC departed from its 2009 precedent in two-fold: the standard of review and the constitutional rights considered. First, the TCC applied strict scrutiny on the account that compelled public apology infringes upon the freedom of speech as it forced the offender to issue statements negating themselves, which is censorship on high-value speech. In applying strict scrutiny, the TCC struck down both the end and the means of compelled apologies. Second, the TCC further went on to hold that in cases where the offender was a natural person, forcing her or him to apologize also violated their freedom of thought.
In the case of torts, Petitioner 1 was ordered by the court to publish a statement of apology online. After exhausting all ordinary judicial remedies, Petitioner 1 lodged for constitutional review in 2015. The court summoned pertaining parties of the case for opinions publicly in 2020, which was attended by Petitioner 1, the Ministry of Justice (the competent authority), and expert witnesses. The Judges Association of the Republic of China (Taiwan), the Taiwan Bar Association, and the Taipei Bar Association also attended as Amici Curiae. Petitioner 2, Petitioner 3 (a company), and Petitioner 4 were involved in separate torts cases and were all ordered by the court to publish statements of apology either online or in newspapers. After exhausting all ordinary judicial remedies, the Petitioners each filed for constitutional reviews arguing that Article 195, Paragraph 1, Second Sentence of the Civil Code (hereinafter “the disputed provision”) is in violation of the Constitution and that the decision of J.Y. Interpretation No. 656 upholding the constitutionality of the said provision, shall be overturned. Their cases were consolidated and decided as they involved the same issue in law.
Summary of the Judgment
- In the case of torts, the “proper measures” under Article 195, Paragraph 1, Second Sentence of the Civil Code  (hereinafter, “ the disputed provision”) shall not include court-ordered apologies from the offenders. J.Y. Interpretation No.656 (hereinafter, “the disputed Interpretation”) shall be revised within this confine accordingly.
- Petitioners of this case may motion for a retrial within the peremptory period of thirty days after the service of this Judgment.
- Where the court-ordered compelled apology in the original final decisions have already been performed, the offender may still motion for retrial, request the court to order other proper measures in rehabilitating the reputation of the injured and appeal to the court to reverse measures that exceed the said proper measures. Article 505-1 of the Code of Civil Procedure shall not apply in this situation, nor shall the party suffering reputational damage be asked to restore the status quo ante before the performance (of the compelled apology). Other proper measures ordered by the court in the subsequent judgment shall not be enforced compulsively.
In its ratio legis and judicial precedents, the “proper measure for the rehabilitation of reputation” in the disputed provision was also construed as including the court-ordered, compelled public apologies, in addition to the clarification statements, the announcements on the judicial vindication of the party suffering reputational damage, or the publications of court judgments in newspapers on the offender's expense. The disputed Interpretation took a similar stance, and opted for an interpretation in accordance with the Constitution (verfassungskonforme Auslegung), ruling that compelled apologies are constitutional so long as they do not involve self-humiliation or degradation of human dignity.【8】
The disputed Interpretation, applying the method of balance of interests in facing pertaining conflict of fundamental rights, ruled that “in the case where it is necessary to limit the offender's freedom to withhold expression so that the reputation of the injured party may be restored, [the court] should carefully weigh in the severity of the unlawful infringement on the moral interest against the contents of the imposed expression before rendering a proper decision so as to comply with the Principle of Proportionality under Article 23 of the Constitution.” However, when the state prohibits the people from actively expressing themselves, they can remain silent; whereas the court orders a compelled public apology, they are prohibited from remaining silent and forced to express self-negating statements. The latter involves a higher intervention in people's freedom of speech, in which the state is permitted to compel people into delivering a certain statement at a certain time and place via certain means. Furthermore, compelled public apology is not merely an expression of objective facts, but also a direct intervention in people's autonomous decision in conveying opinions and values, consequently making it a blatant intervention towards high-value speeches.【9】
In addition to natural persons, legal entities (juridical persons) also enjoy the freedom of speech conferred by the Constitution. Compelled public apology will intervene in a person's autonomous decision on whether to or what to express, no matter it is a natural person or a legal entity. And in the case that the offender is news media (whether in the form of an institute or self-media), compelled apology may intervene in their press freedom, consequently affecting their important functions such as strengthening democracy and facilitating public deliberation.【9】
In this sense, the disputed provision shall be subjected to strict scrutiny—its legislative purpose shall be of compelling public interest; its means shall be necessary to achieve its legitimate aim; and its measure shall be the less restrictive—in order for it to conform to the protection of freedom of speech. 【9】
Firstly, the purpose of the disputed provision is to maintain and protect the reputation of the parties suffering reputational damage and their right to personality. In view that the monetary damages may not necessarily be sufficient in compensating or restoring the reputation of the said parties, it is a justifiable objective to authorize the court to render proper dispositions. However, as cases concerning the infringement of reputation vary, some instances only involve disputes between private individuals that do not affect the interests of third parties or the public. In this sense, it is doubtful that the said legislative purpose amounts to compelling public interest.【10】
Secondly, in terms of the means of the disputed provision, even if the “proper measure for the rehabilitation of reputation” in the disputed provision is deemed indispensable, it is still for the purpose of compensating damages rather than punishing the offender. The range of said proper measure should exclude self-humiliation and degradation of the human dignity of the offender, so shall it be limited moderately following the constitutional protection of freedom of speech. Therefore, the court shall not order compelled apology from the offender, for it is apparently more restrictive than other reputation rehabilitating measures, such as posting the vindication in lawsuits of the parties suffering reputational damage or publishing court decisions (full or in part) on mass media at the offender’s expense.【11】
The abovementioned alternative measures are sufficient in making the court's acknowledgment publicly known: that it believes the offender has violated another's reputation. It helps compensate for the reputational damages suffered by the other without infringing the offender's freedom of withholding expression. On the contrary, if the court orders the offender to apologize and allows the party suffering from reputational damage to publish a statement of apology in the name and at the expense of the offender, it is no different from allowing the latter to violate the offender's autonomy in free speech. To the offender, it is an insincere apology when compelled to do so. As for the party suffering reputational damage, it is doubtful that such an insincere apology can have the positive effect of compensating damages. Therefore, court-ordered, compelled public apology, whether the offender is a natural person or a legal entity, and even if it does not involve self-humiliation or degradation of the offender, is clearly not the less restrictive measure. It is a violation of people’s freedom of speech conferred by the Constitution.【12】
Freedom of thought safeguards people's spiritual activities like consciousness, contemplation, and ideals. It is the root of human civilization, the foundation of the freedom of speech, and the most fundamental of human dignities safeguarded by the Constitution. It shall be protected absolutely. Any form of state infringement towards the freedom of thought shall not be tolerated.【14】
A compelled apology forces the compelled to deliver expressions that contradict their conscience and values, disregarding their true intentions. Whether a person is willing to admit his/her wrongdoing and apologize to others sincerely, concerns his/hers internal beliefs and values. When the offender is a natural person, compelling the person to apologize not only poses a direct restriction on his/hers passive freedom to withhold expressions, but can further intervene in his/her spiritual activities such as conscience, ideals, and his/her freedom of thought in determining values. Such demand of prohibiting silence and compelling expression has forcefully replaced the offender's moral compass with the court's legal judgment. It would create the negative effect of self-denial and self-humiliation that would harm the offender's thoughts, conscience, and human dignity, consequently infringing the natural person’s freedom of thought guaranteed by the Constitution. 【15】
In addition, in the case that the offender is a legal entity, for the reason that it cannot claim freedom of thought and freedom of conscience inherently, it does not concern these rights if the legal entity is compelled to apologize publicly.【16】
In conclusion, the disputed provision allows the court to order an apology from the offender. However, whether the offender is a natural person or a legal entity, and even if it does not involve the offender's self-humiliation and degradation of human dignity, compelled apology still violates the offender's freedom of speech guaranteed by the Constitution. In the case that offender is a natural person, compelled apology further infringes his/hers freedom of thought guaranteed by the Constitution. Therefore, in order for the disputed provision to conform to freedom of speech and freedom of thought guaranteed by Articles 11 and 22 of the Constitution, the “proper measure for the rehabilitation of reputation” shall not include court-ordered, compelled public apology. The disputed Interpretation shall be revised within this confine. 【17, 18】
In accordance with Article 91, Paragraph 2 of the Constitutional Court Procedure Act, Petitioners of this case may motion for a retrial within the peremptory period of thirty days after the service of this Judgment.【19】
For the original cases of this Judgment, where the Petitioners were ordered by the court to issue public apologies, the parties suffering reputational damage may ask the case decisions to be carried out if the courts have ordered proper measures other than compelled apologies in retrials. Where the court-ordered compelled apologies in the original final decisions have already been performed, the offender may still motion for retrial, ask the court to order other proper measures in rehabilitating the reputation of the party suffering reputational damage and appeal to the court to reverse measures that exceed the said proper measures. To avoid secondary victimization of the party suffering reputational damage, Article 505-1 of the Code of Civil Procedure shall not apply in this situation, nor shall the party suffering reputational damage be asked to restore the status quo ante before the performance(e.g., to publish another statement to retract the previous public apology). Furthermore, considering that compelled apology has more de facto effect than other proper measures of rehabilitation of reputation, in pursuit of the equity between the rights and interest of the offender and the party suffering reputational damage, other proper measures ordered by the subsequent judgment shall not be enforced compulsively so that disputes between parties may reconcile soon.【20】
Justice Jau-Yuan HWANG penned this Judgment.
Justice Jeong-Duen TSAI recused himself from the conduct of the proceedings.
Justice Chih-Hsiung HSU (joined by Justice Horng-Shya HUANG) filed a concurring opinion.
Justice Sheng-Lin JAN (joined by Justice Jui-Ming HUANG on Part I and Part III) filed a dissent in part.
Justice Ming-Cheng TSAI (joined by Justice Chen-Huan WU) and Justice Jui-Ming HUANG (joined by Justice Sheng-Lin JAN) each filed a dissenting opinion.
 Article 195, Paragraph 2 of the Civil Code: “If a person has wrongfully damaged to the body, health, reputation, liberty, credit, privacy or chastity of another, or to another's personality in a severe way, the injured person may claim a reasonable compensation in money even if such injury is not a purely pecuniary loss. If it was reputation that has been damaged, the injured person may also claim the taking of proper measures for the rehabilitation of his reputation.”
 Article 505-1 of the Code of Civil Procedure: “The provision of the second paragraph of Article 395 shall apply mutatis mutandis to a rehearing action.”; See also Article 395 of the Code of Civil Procedure: “Where a judgment is entered to reverse or to amend the judgment on the merits to which provisional execution is declared, or the declaration of provisional execution itself, such declaration of provisional execution shall be inoperative to the extent of such reversal or amendment upon the announcement of such judgment. (Paragraph 1)
Where the court reverses or amends the judgment on the merits to which provisional execution is declared, it shall, pursuant to the defendant's claim, order the plaintiff to return the performance effected by the defendant and compensate for the damage that resulted from the provisional execution or exemption of the provisional execution by the judgment entered; where the defendant does not make such claim, the court shall inform him/her that he/she may do so. (Paragraph 2)
Where only the declaration of provisional execution is reversed or amended, the provision of the preceding paragraph shall apply to the subsequent judgment which reverses or amends the judgment on the merits. (Paragraph 3)”
 See J.Y. Interpretation Nos. 577 and 794.
 See J.Y. Interpretation No.656.