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 (TCC) upheld the constitutionality of the Article 309, Paragraph 1 of the Criminal Code, citing TCC Judgment 113-Hsien-Pan-3 (2024). 

    The TCC quashed the petitioner's final court decision because it failed to consider the case under scopes of TCC Judgment 113-Hsien-Pan-3 and 112-Hsien-Pan-8 (2023). The case was remitted to the Penghu District Court.
 

Background Note

    Article 309, Paragraph 1 of the Criminal Code (hereinafter "the disputed provision") 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 constitutionality of the provision is called into question. 

    This case was not consolidated with the petitions of TCC Judgment 113-Hsien-Pan-3 (2024) because it was filed after the oral argument of TCC Judgment 113-Hsien-Pan-3 (2024) and concerned other criminal code articles in terms of its facts. The petitioner of this case was prosecuted under the disputed provision and Article 310, Paragraph 2 of the Criminal Code for public insult and libel (so-called "aggravated defamation"). The petitioner was later found guilty by the Penghu District Court Summary Division for the commission of both public insult and libel in the same act and was sentenced for the latter under the rules of ideal concurrence. After an unsuccessful appeal to the Penghu District Court, the petitioner lodged a constitutional complaint against the disputed provision and her final court decision (Penghu District Court Summary Judgment 112-Chien-Shang-7 (2023)). The petitioner argued that (1) the disputed provision violates equality and the principle of clarity and precision of legal provisions; (2) the disputed provision disproportionately constrained the people's right to personal freedom and freedom of speech; and (3) the final court decision is unconstitutional for not considering the facts under the scope of TCC Judgment 112-Hsien-Pan-8 (2023).

Summary of the Judgment 

Holding

1. Part One and Part Two of the Holding of TCC Judgment 113-Hsien-Pan-3 (2024) shall apply to this petition where Article 309, Paragraph 1 of the Criminal Code is concerned. 
2. Taiwan Penghu District Court Criminal Judgment 112-Chien-Shang-7 (2023) is unconstitutional. It shall be quashed, with the matter remitted to the Penghu District Court. 

Reasoning

1. In terms of the conviction of public insult in the final court decision: 

    The disputed final court decision convicted the petitioner of the offense of public insult, citing the reasoning provided in the prosecution's motion to apply a summary procedure during the first instance trial. The reasoning pointed out that the petitioner (offender) accused the defamed person of being a "dishonest, undiscerning, judgmental, opportunistic merchant." The prosecution contended that such speech was posted on Facebook in a way that could be shared with the general public to the extent that it could cause substantive damage to the defamed person’s personal and social reputation. 【18】

    However, the Penghu District Court failed to give due consideration as to whether such speech exceeded what a general person could reasonably tolerate in the context of the speech's issuance. The court also didn't balance the interest between the speech's potential values and the defamed person's reputation—whether the former is more worthy of protection in the case. Therefore, the part concerning public insult in the final court decision did not conform with TCC Judgment 113-Hsien-Pan-3 (2024), thus contravening the constitutional protection of freedom of speech.【18】

2. In terms of the conviction of aggravated defamation in the final court decision:

    When a person's defamatory speech concerns public interest, even though the person cannot prove the truth of their statements, if the person 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 for truth defense under Article 310, Paragraph 3 of the Criminal Code and shall not be punished. Even if the supporting evidence gathered by the person with reasonable fact-check suggested false information, the person should 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 by the courts 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. Court rulings that fail to consider the abovementioned aspects would contravene the protection of freedom of speech enshrined in the Constitution.【21】

    In the petitioner's final court decision, the reasons supporting the conviction for aggravated defamation were entirely the same as that of the petitioner's public insult conviction. The court did not distinguish whether the speech was a defamatory statement concerning the public interest, nor did it consider whether the truth defense under Article 310, Paragraph 3 of the Criminal Code was applicable. The court subsequently convicted the petitioner for aggravated defamation without giving a proper balance of interests in this case. Therefore, the petitioner's final court decision did not conform with this Court's decision in TCC Judgment 112-Hsien-Pan-8 (2023), making it violate the freedom of speech under the Constitution.【22】