Sidelights | Can the Grand Justices Wash Away Her Wrongful Conviction? Sidelights from Observing the Constitutional Court Oral Argument in the Defamation Case

The conflict between the crime of defamation under the Criminal Code and freedom of speech has long been an unresolved and difficult problem. Although the Grand Justices responded to this as early as 20 years ago in Judicial Yuan Interpretation No. 509, with the rapid development of modern information technology and online media, whether a law is unconstitutional may change along with the liberalization and pluralization of society (cf. Interpretation No. 791). Through the oral argument in Case No. 110-Hsien-Er-Zhi-247, this long-standing issue can be re-examined once again, potentially pointing toward a different direction of thought.

Lin Yu-wen (林郁紋), one of the petitioners in this case and formerly a kindergarten director, saw through surveillance footage that a kindergarten teacher had tied a special-education student in the school to a chair, dragging and slapping the child. After consulting a lawyer, she reported the teacher for obstruction of personal liberty and sent a written account of how the teacher had previously, due to negligence on a certain occasion, let a child wander out of the kindergarten to the kindergarten parents. However, Lin Yu-wen was instead convicted with finality of false accusation and aggravated defamation, and her sentence has already been executed. Regarding the "aggravated defamation" applied in the judgment of this case and what the standard is for the so-called reasonable verification obligation in Grand Justices Interpretation No. 509—as well as the degree to which there is reasonable ground to be convinced of its truth—serious questions remain as to whether their application violates the principle of legal definiteness, contradicts the principle of equality and the prohibition of arbitrariness under Article 7 of the Constitution, personal liberty under Article 8, freedom of speech under Article 11, and the principle of proportionality under Article 23.

What is Meant by "Reasonable Grounds to be Convinced of its Truth"?

Paragraph 3 of Article 310 of the Criminal Code provides that a person who defames another shall be exempt from punishment if they can prove the defamatory statement is "true." Interpretation No. 509 further explains that such truth means the actor, based on the evidentiary materials they submit, has reasonable grounds to be convinced that the statement is true, in which case criminal liability for defamation cannot be imposed. However, during the oral argument, Commissioner Kao Yung-ch'eng (高涌誠) of the National Human Rights Commission under the Control Yuan noted that the vague standard of "having reasonable grounds to be convinced of its truth" creates confusion in practical application. Should academic theories of reasonable verification be adopted, or should varying degrees of truth verification obligations be constructed? Interpretation No. 509 failed to elaborate in depth, leading to inconsistent standards for judging defamation in judicial practice. Consequently, in similar types of cases, encountering different judges might result in different degrees of verification obligations being applied, thus altering the outcome. This is tantamount to forcing people to flip a coin to see whether they will encounter a judge who shares their perspective and secure an acquittal.

If Defamation is Decriminalized, Wouldn't the Wealthy Be Able to Insult and Denigrate People at Will?

"If defamation is truly decriminalized... does that mean the rich have an unlimited right to hurl abuse at others? Can people with wealth commit crimes at will?" Such skepticism is not entirely unfounded. Attorney Ch'en Wei-jen (陳偉仁), counsel for the litigation, stated during the oral argument that this issue was already thoroughly discussed when former Interpretation No. 791 overturned Interpretation No. 554. Parties whose reputations have been infringed most urgently need the offending false speech to be taken down or retracted. Civil remedies already encompass relevant provisions for restoring a party's reputation, and it cannot be said that protection is inadequately comprehensive merely because the means are civil. Conversely, imposing the criminal punishment with the highest degree of culpability does nothing to help restore the victim's reputation.

Do Article 310 of the Criminal Code and Interpretation No. 509 Comply with the Principle of Proportionality?

First, Hsu Yu-an (徐育安), a professor in the Department of Law at National Taipei University, believes that from the structure of the crime of defamation, it can be divided into two types. The first type punishes "untrue speech" concerning public interest. Because such speech involves the public interest and largely affects the formation of public opinion, punishing such false speech possesses higher legitimacy and can protect the soundness of democracy.

The second type involves speech content concerning only private morality. Speech concerning private morality, regardless of whether it is true, falls within the scope of punishment. Furthermore, if the statement is true, the only remaining prohibitive significance under the criminal law is the protection of the right to privacy, and the protection of the right to privacy is already regulated by the chapter on offenses against secrecy in the Criminal Code. On the other hand, if the statement is untrue, although reputation may be harmed as a result, such infringement is not irreparable and can still be regulated through other means such as civil tort litigation or disciplinary procedures, without the need to invoke criminal punishment. Therefore, the necessity of criminal punishment is open to question.

Furthermore, it is doubtful whether criminal punishment constitutes the least restrictive means. As mentioned above, victims of infringement most desire for the false speech to be taken down as quickly as possible to prevent more people from seeing it, which is the most effective means of protecting reputation—naturally a less restrictive means compared to criminal punishment. Moreover, victims whose reputations have been damaged by existing speech can claim damages and request appropriate disposition to restore their reputation, which can likewise achieve the effect of reputation restoration. Therefore, criminal penalties impose an excessive and outdated restriction on the freedom of speech of speakers, and the infringement upon speakers is excessively severe.

Finally, the Constitutional Court held in Constitutional Judgment No. 2 of the 111th Year (2022) that forcing individuals to apologize through civil judgments indeed infringes upon the freedom of speech guaranteed under Article 11 of the Constitution and is unconstitutional. Compared to Article 310 ofသောအ Criminal Code, which directly interferes with people's freedom to express free speech by means of criminal punishment, it is even more undeniably an infringement upon the freedom of speech under Article 11 of the Constitution.

Conclusion

Regarding Lin Yu-wen's conviction for aggravated defamation, the court's reason for finding her guilty was that she did not fulfill her obligation of reasonable verification. Yet, Lin Yu-wen had indeed received a report provided to her by the teacher, which mentioned that the teacher herself indeed had negligence and failed to notice that a child had left, among other things, and there were also relevant audio recordings as evidence. If even this is considered failing to fulfill reasonable verification, where on earth is the standard for determining the so-called reasonable verification obligation? How on earth should being convinced of its truth be interpreted?

While criminal law certainly has a general deterrent effect, the premise for establishing this effect is that the people understand the constituent elements of the legal provision; only then does general deterrence have meaning. If the provisions in the criminal law are all vague and indefinite legal concepts, not only must judges clarify these vague definitions one by one, but the people will also be left at a loss, not knowing whether their actions constitute a crime, which ultimately fails to help achieve the effects intended by general deterrence theory.

Attorney Ch'en Wei-jen mentioned at the end of this oral argument that although defamation cases have shown a doubling trend in recent years, non-prosecution decisions accounted for 70% of them, far higher than the average. Even after indictment, over 90% of cases are sentenced to short-term detention or fines convertible to community service, yet vast amounts of judicial manpower and resources are consumed during the investigation stage. Given the severe harm criminal penalties inflict upon actors, the principle of the ultima ratio of criminal law should be strictly observed, rather than allowing criminal law to become a tool to coerce settlements through criminal charges.

Ever since the Supreme Court dismissed the appeal, the entire case became final. Lin Yu-wen's sentence has long since been executed, but even though the case has come to a close, the pain inflicted upon Lin Yu-wen by the judicial error can never be erased. What kind of determination will the Grand Justices make regarding restrictions on freedom of speech? More than 20 years have passed since Interpretation No. 509 was rendered; how will the Grand Justices view the current protection of freedom of speech? This constitutional interpretation is not only vital to Lin Yu-wen's final justice, but is also intimately connected to the development of freedom of speech in Taiwan. It is hoped that more people will pay attention to Lin Yu-wen's case and that this case will spark further discussion on the constitutionality of the elements of the crime of defamation.