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

    Article 309, Paragraph 1 of the Criminal Code, which stipulates that public insults are punishable by short-term imprisonment or a fine, is proportionate and does not violate the constitutional protection of the freedom of speech so long as the punished act of public insult entails (1) insulting speeches that are given publicly and purposefully to hurt another's reputation to the extent that exceeded what a general person could reasonably tolerate; and (2) under the balance of interest between the offender's freedom of speech and the victim’s reputation, the latter is more worthy of protection. 

    The term "insult" in the disputed provision, whose meaning can be deduced by a court through general legal interpretation, does not violate the principle of legal clarity (the principle of clarity and precision of legal provisions).

Background Note

    Article 309, Paragraph 1 of the Criminal Code stipulates "A person who publicly insults another may be sentenced to short-term imprisonment or a fine of not more than nine thousand dollars." A question arises as to whether imposing criminal punishment for public insults is compatible with the constitutional protection of freedom of speech.  

    There are 24 petitioners in this case, half of whom were found guilty finally under the disputed provision, and the other half are judges (or court panels) who questioned the constitutionality of the provision when hearing public insult cases. The petitioners argued that: (1) The term "insults" in Article 309, Paragraph 1 of the Criminal Code is unclear, thus violating the principle of legal clarity; (2) A speech would not harm the reputation. A speech being found insulting only reflects the subjective judgment of the listener; (3) criminal measures are not the least restrictive means to protect the right to reputation; and (4) the disputed provision may lead to a chilling effect on freedom of speech. In addition, some of the petitioners also filed constitutional complaints against the final court decisions in which they were convicted for the offense under the disputed provision.
 

Summary of the Judgment 

Holding

1. Article 309, Paragraph 1 of the Criminal Code (December 25, 2019 version) stipulates: "A person who publicly insults another shall be sentenced to short-term imprisonment or a fine of not more than nine thousand dollars." The act of public insult punishable under said provision entails, in the context of individual cases, insulting speeches that are given publicly and purposefully to hurt another's reputation to the extent that exceeds what a general person could reasonably tolerate. It also entails that another's right to reputation is more worthy of protection than the offender's freedom of speech after balancing the speech's impact on another reputation, its contribution to the public discourse, its positive value in academic or professional fields, and whether it amounts to literary or artistic expressions. Within this scope, the disputed provision does not violate the protection of freedom of speech under Article 11 of the Constitution. 
2. The term "insult" in the disputed provision does not violate the principle of legal clarity. 
3. In terms of Petitioner IX's constitutional complaint, the part where Taoyuan District Court Criminal Judgment 110-Chien-Shang-573 (2022) dismissed the petitioner's appeal against being found guilty of public insult is unconstitutional. The said decision should be quashed partially, with relevant matters remitted to the Taoyuan District Court. 
4. In terms of Petitioner X's constitutional complaint, Taiwan High Court Criminal Judgment 111-Shang-Yi-1671 (2023) is unconstitutional. It should be quashed, with relevant matters remitted to the Taiwan High Court. 
5. In terms of Petitioner XI's constitutional complaint, Taoyuan District Court Criminal Judgment 110-Chien-Shang-505 (2022) is unconstitutional. It should be quashed, with relevant matters remitted to the Taoyuan District Court. 
6. In terms of Petitioner XII's constitutional complaint, Taiwan High Court Criminal Judgment 112-Shang-Yi-651 (2023) is unconstitutional. It should be quashed, with relevant matters remitted to the Taoyuan District Court. 
    

Reasoning

1.    In terms of Part 1 of the Holding:

(1)    Constitutional rights pertaining to the review:

    Article 11 of the Constitution inscribes that the people's freedom of speech should be protected. The purpose of this article is to protect the free communication of speeches, which enables people to gain sufficient information from the self-regulated and pluralistic marketplace of ideas. People doing so may express themselves and further realize their personalities, promote the discovery of truth, the dissemination of knowledge, and the public discourse of civil society. Under the protection of freedom of speech, the people can effectively put the government under public scrutiny, which aids in the development of democracy. However, this does not mean that speeches of all kinds are all unrestricted. When a person's speech undermines another's rights or public interest, the legislator may, conforming to the requirement of Article 23 of the Constitution, impose constraints on speeches as appropriate. Such constraints hold the offender accountable in terms of civil, criminal, or administrative responsibilities.【30-31】

    The disputed provision imposes criminal punishment on certain content of speeches. Under the ultima ratio principle in criminal law, when reviewing the constitutionality of such a measure, special consideration should be given to whether the positive effects pursued by such criminal punishment are obviously bigger than the damages of limiting the freedom of speech. This is to prevent the courts and prosecuting entities from overly intervening in the free communication and debates between people in private disputes that do not concern the public interest.【32-33】

(2)    Review of the provision's purpose:

    With reference to the provision's legislative history and judicial practice, the provision's purpose is to protect people's right to reputation, especially the personality rights guarded under it. Under the jurisprudence of this Court, the right to reputation is an unenumerated constitutional right under Article 22 of the Constitution. In theory and practice, the protection of it could include a person's social reputation, honor, and dignity in personality. Social reputation, or so-called "external reputation," is what others objectively think of a person. Honor is what one subjectively expects or feels of his or her own reputation. Dignity in personality entails a person's societal subjective status respected and treated as equals by others, sans discrimination or depreciation. A person's equal subjective status is related to the person's development in personality and the equality between members of the society, which should be considered as the core of the protection of personality rights under the right to reputation.【35-36】

    Personality rights, or the right to the free development of one's personality, concerns a person's freedom, as a subject of right, to decide, form, and develop his or her personal morals or characteristics. It is an unenumerated constitutional right that contains personal reputation under its scope of protection. The right to reputation can be seen as a specific personality right, as it derives from the substantialization of general personality rights in the sphere of societal evaluation. In this case, this Court only has to review the protection of the right to reputation, especially the part where it covers the protection of dignity in personality, instead of reviewing personality rights repeatedly.【37】

A.    In terms of social reputation:
    Whether a public insult is potent enough to tarnish one's actual social reputation depends on the context of each case. Criminal punishment is not necessarily needed if an insulting speech only undermines one's fame or merely causes one's actual social reputation inapparent damages that can be cleared by the marketplace of ideas. Employing criminal measures against insulting speeches to protect people's actual social reputation, however, is a legitimate legislative purpose.【40】

B.    In terms of honor: 
    Honor depends on a person's subjective feelings, which cannot be verified. It would be hard to foresee or ascertain the literal scope of the term "insult" if added honor under the protection of the disputed provision. Therefore, the constitutional right to reputation does not protect one's feelings toward his or her reputation.【42】

C.    In terms of dignity in personality: 
    A person's subjective status is connected to the person's personality development and the peaceful coordination of societal communal life, which also concerns public interest. When a person from a structurally powerful group demeans the identity or qualification of another person from a vulnerable group, it would not only demonstrate the offender's hostility or prejudice against the group and its members but also affect the substantive equality of their social structural position and power relations. This type of insult has a negative ripple effect in society instead of merely infringing private interests. Therefore, an intentional public insult that demeans another's character may degrade the person's equal subjective status and further cause substantial damage to his or her personality rights.【45】

To conclude, the purpose of the disputed provision is constitutional so long as it protects a person's social reputation or dignity in personality from being damaged by another's insulting speech.【47】

(3)    Review of the provision's measure: 

    Although the disputed provision's purpose is constitutional within the aforementioned scope, this Court should still review the provision's measure in terms of the reach of its application and whether its punishment conforms with the ultima ratio principle in criminal law. This is to make sure that the positive effects of the provision outweigh the negative effects of restricting speech.【49】

A.  The textual scope and implication of the term "public insult" in the disputed provision may be overreaching and should be limited as appropriate. 

    There is a risk that the textual scope or implication of the term "public insult" in the disputed provision, may be unduly restrictive of freedom of speech. This risk arises from the fact that the punishment may be overreaching due to the lack of stable criteria, may be unduly interfering with an individual's use of language, or may penalize negative speeches which also serve a function of public discourse. Considering the constitutional protection of freedom of speech, the act of criminal public insult entails, in the context of individual cases, insulting speeches given publicly and purposefully to hurt another's reputation to the extent that exceeds what a general person could reasonably tolerate. It also entails that another's right to reputation is more worthy of protection than the offender's freedom of speech after weighing the competing factors, such as the speech's impact on another's reputation, contribution to the public discourse, and positive values in academic or artistic fields. Within this scope, the disputed provision conforms to the protection of freedom of speech under Article 11 of the Constitution.【51、55、67】

    To elaborate on the aforementioned criteria, in addition to referring to the speech's context, factors such as the offender's personal condition, the status of the offended, the relationship between the two, and the incident involved should also be taken into consideration. Accidental and unintended insults out of indignation or a slip of the tongue should be distinguished from intentional direct insults. Furthermore, speeches that are merely offensive and do not do much harm should not be considered reasonably intolerable—because being offended is inevitable in common social life. Negative remarks would meet the criteria of "exceeding what a general person could reasonably tolerate" if they cause mental anguish that leads to detrimental mental effects or self-denial of another's dignity. Negative remarks on public affairs, though distressing to certain people, may still be valuable for public discourse. The same goes for speeches concerning another person's academic and artistic performances. The value of these negative remarks should be considered in context instead of being punished directly for public insult. 【56-59】

B.  The deterrence effect provided by the disputed provision conforms with the ultima ratio principle in criminal law.  
    Under the ultima ratio principle in criminal law, offenses that are punishable by criminal measures, in principle, should be limited to anti-social conduct that damages the public interest. If a publicly issued insulting speech has harmed a person's social reputation or dignity in personality beyond the extent that a general person can reasonably tolerate, it is not merely offensive but anti-social. This is especially the case when the speech is intended to degrade the person's structurally vulnerable character (e.g., race, gender, sexual orientation, disabilities) and further undermine his or her equal subjective status as well as dignity. The legislative decision to punish such speech with criminal measures provides a general deterrence effect, which does not violate the ultima ratio principle in criminal law.【61-63】

    The disputed provision includes short-term imprisonment as one of the options for its statutory punishment. Although short-term imprisonment may be commuted to a fine, under the constitutional principle of proportionality in sentencing, it could still be draconian to deprive a person of bodily freedom solely because of the person's speech. Short-term imprisonment should only be considered for severe public insult cases, such as online or digitally transmitted insults that cause continuous, accumulative, and viral harm to the victims.【64】

(4) In terms of the judicial remedies of the petitioners' original court cases:

    Even though the disputed provision is constitutional within the scope mentioned above, Petitioner I to VIII's final court decisions should be remedied if not conform to this Judgment. Under Article 92, Paragraph 2 of the Constitutional Court Procedure Act, applying Article 91, Paragraph 2 mutatis mutandis, these petitioners may petition the Prosecutor General for an extraordinary appeal if they believe the final court decisions of their cases violate this Judgment. The Prosecutor General may also file an extraordinary appeal sua sponte if he or she believes any of these decisions violate this Judgment.【68】 

2.    In terms of Part 2 of the Holding:

    The term "insult" in the disputed provision it is a value-dependent indefinite legal term, which may raise the question of clarity. However, as it is viable for the courts to interpret and apply such an indefinite legal term in individual cases, the provision is not in violation of the principle of legal clarity.【71】

3.    In terms of Part 3 to Part 6 of the Holding:

    The disputed provision is constitutional within the scope shown in Part 1 of the Holding. However, in terms of the constitutional complaint lodged by Petitioner IX to XII (four individual cases) against their final court decisions, this Court has reviewed the decisions following the factors mentioned above and found all four of them unconstitutional. These cases should be quashed, with relevant matters remitted to each of their courts of jurisdiction.【75】

Justice Jau-Yuan HWANG wrote this Judgment. 

Justice Jui-Ming HUANG and Justice Tai-Lang LU each filed a concurring opinion. 

Justice Sheng-Lin JAN filed an opinion concurring and dissenting in part, joined by Justice Jui-Ming HUANG and Justice Tai-Lang LU in the concurring part.