Case News

The TCC delivers its Judgment 112-Hsien-Pan-8 (2023)

    TAIPEI, June 15, 2023. The Taiwan Constitutional Court (TCC) delivered its Judgment of the "Case on the Criminalization of Defamation II" on June 9, 2023.

Principal Facts, Issues, and Procedure of the Case

    Article 310, Paragraphs 1 and 2 of the Criminal Code stipulated the elements and punishment of defamation, in which a person committed the offense of defamation shall be sentenced to imprisonment for not more than one year (two years if committed by circulating a writing or drawing), short-term imprisonment, or a fine of not more than fifteen thousand dollars (not more than thirty thousand dollars if committed by circulating a writing or drawing). Article 310, Paragraph 3 of the Criminal Code stipulated that defamation concerning public matters shall not be punished if the offender can prove the validity of the defamatory fact. Article 311 of the Criminal Code also stipulated that defamation shall not be penalized if made with bona fide intent under the following circumstances: (1) self-defense, self-justification, or the protection of legal interest; (2) report made by a public official in his official capacity; (3) fair comment on a fact subject to public criticism; and (4) fair report on the proceedings of a national or local assembly, court, or a public meeting. The constitutionality of these provisions was previously upheld in J.Y. Interpretation No.509 (2000), where the TCC maintained that the offender need not prove that the defamatory statement is true so long as the offender can reasonably believe it is based on the evidence collected. 

    Petitioners of this Judgment, Chang-Sheng CHU (Petitioner I), Ying-Chieh LU (Petitioner II), Hsieh-Jen HSIAO (Petitioner III), Jung-Chi HSU (Petitioner IV), Yi-Teng Chen (Petitioner V), Yu-Wen LIN (Petitioner VI), Chen-Ni LI (Petitioner VII), and Chen-Fei LI (Petitioner VIII) were involved respectively in cases of criminal defamation. Petitioners I, II, IV, V, VII, and VIII have defamed their victims via websites, social media, or email; Petitioners III and VI via hard copy. The petitioners were convicted and their cases were finalized by the Taiwan High Court. The petitioners each lodged constitutional complaints in the following manner: (1) All petitioners argued that Article 310, Paragraphs 1, 2, and 3 are unconstitutional for constraining freedom of speech disproportionately ; (2) Petitioners III and VII argued additionally that Article 311 of the Criminal Code is unconstitutional for providing insufficient justification of defenses for defamation; (3) Petitioners I, II, V, VI, and VIII argued additionally for the decision of J.Y. Interpretation No.509 to be altered or supplemented; and (4) Petitioners VII and VIII also argued that the final judgments of their respective cases, Taiwan High Court Judgment 111-Shang-Yi-720 (2022) and Judgment 111-Shang-Yi-1211 (2022), are unconstitutional. 

    Their complaints were consolidated and argued on March 14, 2023, with relevant documents made public on the TCC website per the requirements of the Constitutional Court Procedure Act (CCPA). Judgment 112-Hsien-Pan-8 was announced by the Court en banc at 2:30 p.m. on June 9, 2023. Justice Tzung-Jen TSAI wrote this Judgment. Justice Jui-Ming HUANG, Justice Sheng-Lin JAN, and Justice Ming-Yan SHIEH each filed a concurring opinion. Justice Horng-Shya HUANG filed an opinion dissenting in part and concurring in part. Justice Ming-Cheng TSAI, Justice Chih-Hsiung HSU, Justice Jau-Yuan HWANG, and Justice Hui-Chin YANG each filed a dissenting opinion.

Decision of the Court

    The TCC dismissed all of the complaints and upheld the constitutionality of the disputed provisions, ruling that it has constituted no violation of the principle of proportionality and freedom of speech, and that defamatory speeches concerning private matters shall be penalized even if proven real. In its reasoning, the TCC emphasized that the proviso of Article 310, Paragraph 2 of the Criminal Code, which excludes the application of substantial truth doctrine on defamatory speeches concerning private matters with no public concern, is proportionate in protecting the victim's reputation and privacy. 

    The TCC reaffirmed J.Y. Interpretation No.509 and further supplemented its decision. In this Judgment, the TCC elaborated on the offender’s duty to check for the validity of the defamatory statements regarding public matters, and dictated that the offender shall not be punished if there are objective and reasonable grounds for the offender to believe the defamatory statement is true. The TCC also ruled that untrue defamatory statements concerning public matters shall not be punished unless they are issued under actual malice. It includes situations where the offender knowingly or under gross negligence issued said defamatory statement. In terms of the burden of proof for actual malice, the TCC ruled that it shall be on the prosecutor or the accuser. To prevent fake news from eroding the marketplace of ideas, the TCC pointed out that the media (including mass media, social media, and self-media) shall be more thorough than the general public in ante hoc fact-checking.

    It has been 23 years since the announcement of J.Y. Interpretation No.509 (2020). Given the drastic evolution of the means and forms of (mass) communication, the TCC has admitted this case so that it may clarify the duty to fact-check in J.Y. Interpretation No.509, and further elaborate on the development of court practice regarding actual malice. 
 

Notes:

1. Full texts of the Judgment and Opinions are available on the TCC website at https://cons.judicial.gov.tw/docdata.aspx?fid=38&id=340775 (Traditional Chinese). An English summary of this Judgment will be available later on the TCC English website.
2. 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.