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 TCC upheld the constitutionality of Article 311 and Article 310, Paragraphs 1, 2, and 3 of the Criminal Code, ruling that they did not violate the principle of proportionality and freedom of speech. 

    Article 310, Paragraph 3 of the Criminal Code precludes punishment if the content of the defamatory statement can be proved true. The paragraph also contains a proviso (second half of the sentence) that limits its application to statements concerning public matters. The TCC ruled that the provision is proportionate in protecting the victim's reputation and privacy. 

    This Judgment further supplemented J.Y. Interpretation No.509 (2000). In this Judgment and in terms of first half of Article 310, Paragraph 3 of the Criminal Code, the TCC emphasized on the offender's duty to fact-check the defamatory statements regarding public matters, even though the offender has objective and reasonable grounds to believe the defamatory statement is true. 

Background Note

    Article 310, Paragraphs 1 and 2 of the Criminal Code stipulated that a person who makes defamatory statements may be sentenced to imprisonment for not more than one year (two years if committed by circulating writing or drawing), short-term imprisonment, or be fined for not more than fifteen thousand dollars (not more than thirty thousand dollars if committed by circulating writing or drawing). Article 310, Paragraph 3 of the Criminal Code stipulated that defamation concerning public matters shall not be punished if the content of the defamatory statement can be proved true. 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 collected evidence.

    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 of the Criminal Code (hereinafter Provisions I, II and III) are unconstitutional for constraining freedom of speech disproportionately ; (2) Petitioners III and VII argued additionally that Article 311 of the Criminal Code (hereinafter Provision IV) 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.
 

Summary of the Judgment 

Holding

1. Article 310, Paragraph 3 of the Criminal Code stipulated that defamation concerning public matters shall not be punished if the content of the defamatory statement can be proved true. When the matter of defamation concerns public interest, which does not involve private life that is of no public concern, even though the person cannot prove the truth of their statements, if he or she has undergone a reasonable fact-checking process before making the statement and, based on the evidence obtained, objectively believed that the statement is true, then it meets the requirements of the aforementioned provision and shall not be punished. Even if the supporting evidence gathered by the person with reasonable fact-check suggested false-information, the person shall not be punished so long as he or she did not knowingly or recklessly rely on such evidence. As to whether the person has met the requirements for reasonable fact-checking, it should be evaluated on a case-to-case basis under full consideration of the Constitution’s intention to protect the right to reputation and the freedom of speech. Under this premise, the punishment of defamation under Articles 310 and 311 of the Criminal Code is proportionate under the Constitution in general, and it does not violate the protection of freedom of speech. The decision of J.Y. Interpretation No.509 should be supplemented within this scope. 
2. Petitions from Petitioner I to VIII are meritless and shall be dismissed. 

Reasoning

1. Principle of review: 

    Freedom of speech is expressly protected under Article 11 of the Constitution, which includes the protection of the expression of both subjective opinions and objective facts. The right to reputation is protected under Article 22 of the Constitution. Said two rights should enjoy equal protection under the Constitution, which in principle, the State shall provide its utmost guarantee. However, a conflict between these rights happens when a person infringes on another's reputation through his or her speech. In this case, the State has to primarily try to reconcile the requirements of the two fundamental rights. If irreconcilable, the State has to, based on the nature of the conflict, decide on the proper balance of interest to impose restriction or protection toward the two rights. The standard for balancing interests should consider the many functions and important meanings of free speech toward the democratic society; and the infringement of personal reputation: in what way, to what extent, and within what scope was it infringed. 【50-52】

    In terms of providing information on public matters and communicating opinions, different speeches contribute differently based on the nature of their contents and mediums. Therefore, when balancing interests between the right to reputation and freedom of speech in individual cases, special consideration should be given to the contribution of speech to public discourse. The higher the contribution of speech to public discourse, usually the greater the degree of protection should be afforded to its freedom of speech, and consequently, relative concession should be made to the protection of the right to reputation of those referred in the speech, and vice versa.【53】

    Criminal provisions that punish defamatory speeches concern the freedom of expression, which may only be legitimately restricted for pursuing significant constitutional rights or compelling public interest. In addition, the penal means restricting freedom of speech should be suitable for attaining its purpose (Suitability); it should be the least restrictive among the equally effective means (Necessity); and it should go through an appropriate weighing of interests to maintain a proper balance between the protection of freedom of speech and the right to reputation under the Constitution (Proportionality stricto sensu/ Appropriateness). In this way, the measure meets the principle of proportionality enshrined in Article 23 of the Constitution.【54】

2. Review of the Court:

(1) The purpose of punishing defamation is to protect people's right to reputation, which is an important constitutional right, making the purpose constitutional and legitimate. In view of the general and specific deterrence function of criminal punishment, when the legislators choose a penal measure to punish reputation-infringing offenses, the measure should aid in the protection of the right to reputation and meet the requirement of suitability under the principle of proportionality.【60】

(2) In terms of the proviso of Provision III: The legislators did not design the constituent elements of the offence of defamation (stipulated in Provisions I and II) based on the premise that the defamatory statement has to be false. From this perspective, the legislators chose to value the defamed person's right to reputation over the declarant's freedom of speech when it comes to defamatory statements that concern private life and not of public interest.【66】

(3) The so-called "private life" often involves a person's living habits, self-cultivation, values, personalities, etc., which is also inseparable from the management of one's personal businesses. One would inevitably intrude on the referred person's zone of privacy when fact-checking statements on the person’s private life. The process may even force the referred person to disclose his or her private matters to the public or engage in public debate with the declarant. If legislators intend to allow statements concerning private matters to enjoy the defence of truth, they must have legitimate reasons for limiting the privacy of the person referred to in the statements. One such reason is if the statement is related to public interest. On the contrary, if the statement is not of public interest, there are no objective justifications to place the declarant's freedom of speech above the referred person's right to reputation and privacy. The proviso of Provision III does not violate the requirement of proportionality stricto sensu under the constitutional principle of proportionality. 【67-68】

(3) In terms of the first half of Provision III: 
    The defence of truth under the first half of Provision III only applies to defamatory speeches that concern public interest. The requirement for the defence of truth should not be construed as requiring the content of speech to be objectively and absolutely true. Speeches on facts often are not issued omnisciently, especially when it comes to the media's reports and follow-ups on public events, and typically when the reported events are under development.【72】

    However, in a democratic society, people rely on all kinds of factual speeches of public interest to form their recognition and judgments of relevant public affairs. Providers of factual information in a contemporary democratic society, no matter the media or commoners, should have some degree of fact-checking responsibility. Especially for speeches that have defamatory potentials, the declarants must shoulder certain fact-checking responsibilities to avoid infringing another person's right to reputation. 【73】

    "Truth" in the first half of Provision III should not be limited to object and absolute truth, but should also include relative truth deduced when fact-checking. That is to say, the declarant would be exempted from punishment under the first half of Provision III if his or her speech was based on the evidence gathered through a reasonable fact-checking process that can be objectively and rationally believed as truth. Even if the evidence gathered was not true, inasmuch as the referencing of said evidence was not knowing or under reckless disregard of its falsity (actual malice), the declarant should not be punished for he or she has objectively undergone a reasonable fact-checking process. In this situation, the declarant bears the burden of proof that he or she has fact-checked reasonably and that the evidence gathered during the process was objectively and rationally believable to be true. In cases where the material on which the declarant relied suggested false information, the burden to prove that such reliance derived from the declarant's awareness or recklessness falls on the prosecutor or the accuser.【74】

(4) In conclusion, so long as the first half of Provision III is applied as such, the punishment of defamation (stipulated by Provisions I to IV) does not violate the requirement of proportionality stricto sensu, consequently conforming to the constitutional principle of proportionality and the protection of freedom of speech. Within the scope of this Judgment, The decision of J.Y. Interpretation No.509 should be supplemented.【79】