Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

Headnotes

    The Taiwan Constitutional Court ruled that, by allowing only medical institutions to advertise medical care services, Article 84 of the Medical Care Act (MCA) has unconstitutionally violated doctors' freedom of speech. 

Background Note

    Article 84 of the Medical Care Act (MCA) stipulates that "[n]on-medical care institutions shall not make advertisements for medical care." This provision was introduced to protect people's health from the harmful effects of inappropriate advertising. Medical institutions are allowed to advertise under the MCA, but individual doctors are not, so that the regulatory authority may avoid facing supervisory challenges. Violators may be subject to a fine.

    The petition was originally filed by a judge at the Administrative Litigation Panel of the Taipei District Court, but the case was referred to another judge at the District Administrative Litigation Panel of the Taipei High Administrative Court after the re-organization of administrative court jurisdictions in 2023. The latter judge assumed the petition under Article 57 of the Rules of the Constitutional Court. 

    The petitioner was hearing a case in which the plaintiff (a doctor) had been fined 50,000 NTD by the Department of Health of the Taipei City Government for advertising medical care services. The petitioner believes that Article 84 of the MCA violates freedom of speech, the freedom of occupation, and equality under the Constitution.

Summary of the Judgment 

Holding

    Article 84 of the Medical Care Act (MCA) stipulates that "[n]on-medical care institutions shall not make advertisements for medical care." Where doctors are prohibited from advertising medical services, this article contradicts the freedom of speech under Article 11 of the Constitution. Within this scope, this article shall lose its effect immediately from the date of this Judgment. 

Reasoning

1. Scope of this Judgment:
       Although people or entities other than a medical institution are all probable to issue a medical care advertisement, this judgment only concerns the constitutionality where doctors are restricted from advertising medical services under the challenged provisions. 【10】
2. This case shall apply intermediate scrutiny.
       In addition to promoting medical services and attracting patients, medical care advertisement also concerns the self-expression of doctors, public communication of medical messages, and referral of medical information for patients to choose relevant services. As medical services are highly professional, correct messages offered by doctors are especially important for patients to make their choices. 【15】
       Even though commercial speeches are not deemed equivalent to other higher-valued speeches and may be subjected to stricter regulations, they should be protected by the freedom of speech under Article 11 of the Constitution so long as they are true, non-misleading, for legitimate transactions, and helpful for the consumers to make economically reasonable choices. The State may restrict commercial speeches by adopting regulatory means to ensure the consumer's access to true and complete information, avoid misleading content, and promote other important public welfare. Regulatory means shall be substantially related to its goals. This level of scrutiny (intermediate) is supported by various constitutional interpretations, such as J.Y. Interpretations Nos. 414, 577, and 794. 【17】
       The disputed provision poses restriction on the subject of speech rather than on contents, which is different from the issues raised in previously mentioned constitutional interpretations. Nevertheless, the level of scrutiny therein is applicable in this case. 【18】
       Doctor-issued medical care advertisements concern the doctors' self-expression and freedom of speech to convey messages to the public. It is also closely related to people's health. Legislators may adopt regulatory means that are substantially related to the protection of people's health.  【18】
3. The disputed provision violates the freedom of speech under Article 11 of the Constitution. 
       The disputed provision's legislative history and  ratio legis indicate two purposes: First, is to avoid supervisory challenges for the regulatory authority; Second, is to protect people's health from the harmful effects of inappropriate advertising. 【25】
       Under Article 23 of the Constitution, medical care advertisement by doctors concerns doctors' freedom of speech, and should not be restricted unless necessary for protecting people's health and furthering public interest. Managerial convenience for medical care advertisements cannot be deemed as a pursuit of important public interest. However, as the disputed provision also concerns protecting the health of the people, its purpose can still be seen as of important public interest and does not violate the Constitution.【26】
       Prohibiting doctors from advertising medical care services does not necessarily help protect people's health. For more than 40 years in the past, from the promulgation of the MCA in 1943 to the amendment of the MCA in 1986, doctors had been allowed to advertise medical services. No sufficient empirical evidence has been submitted by relevant authorities to support the argument that doctors will make inappropriate advertisements once the restriction is lifted. Therefore, the means of prohibiting doctors from advertising medical care is not substantially related to its purpose. 【28】
       Another legislative reason is that since doctors should work in medical institutions approved by the competent health agency, they should be prohibited from advertising medical services. However, doctors may also work outside or at multiple medical institutions under certain conditions. One cannot prohibit doctors from advertising simply because medical institutions can already do so. Since doctors may conduct medical services independently based on their certified profession, their medical care advertisements cannot be replaced by that of the medical institutions and shall be protected independently by the freedom of speech under the Constitution. 【28】
       In conclusion, the means of the disputed provision is not substantially related to its goal. The disputed provision violates the principle of proportionality under Article 23 of the Constitution, consequently infringing doctor’s freedom of speech. 【29】