Sidelights｜Balancing Freedom of Speech with Personal Privacy and Reputation: Observations and Reflections on the Constitutional Court Oral Argument in the Defamation Case

In Interpretation No. 509, delivered in the 89th year of the Republic of China (2000), the Grand Justices rendered a constitutional interpretation concerning the crime of defamation under the Criminal Code. Regarding the portion of the first sentence of Article 310, Paragraph 3 of the Criminal Code which states, "An act of defamation that can be proven to be true shall be exempt from punishment," the Judicial Yuan's Interpretation No. 509 held that even if the speaker cannot prove the speech is true, as long as they have reasonable grounds to genuinely believe it is true based on the evidentiary materials presented, punishability may be excluded. Today, more than twenty years after the issuance of Interpretation No. 509, there continues to be extensive discussion in both legal practice and academia regarding the determination standards for "reasonable grounds to genuinely believe it is true" and the doctrinal status of the truth clause within the Criminal Code.

On March 14 of this year, the Constitutional Court held oral arguments for the constitutional interpretation petition regarding the defamation case (Case No. 247 [Hsu-Er] of ROC 110). The oral argument proceedings were divided into four main stages: the petitioners presented their statements in order, followed by statements from the related authority, questioning and answers by the Grand Justices, and finally closing arguments.

There are a total of six petitioners in this constitutional interpretation case, with two main focal points:

1. Whether the crime of defamation under Article 310 of the Criminal Code infringes upon the freedom of speech guaranteed by Article 11 of the Constitution.
2. Whether Interpretation No. 509 requires supplementation or modification. Among the petitioners, Lin Yü-wen is an individual wrongfully convicted whom the JRF previously assisted.

Arguments

Regarding the arguments presented by the petitioners, all six jointly maintained that Article 310 of the Criminal Code is inconsistent with the intent of Articles 8, 11, and 23 of the Constitution, and that Interpretation No. 509 warrants supplementation or modification. In addition, Professor Lu Ying-chieh submitted an independent statement requesting that the application of Article 310 of the Criminal Code to penalize internet texts that have already been deleted or taken down be declared unconstitutional. The related authority, the Ministry of Justice, argued that the structural framework of Article 310 of the Criminal Code has already adequately balanced the protection of the right to reputation and the right to privacy, and that Interpretation No. 509 requires no supplementation whatsoever.

Grand Justices' Questioning and Answers

As expert scholars and members of the National Human Rights Commission all agreed that Interpretation No. 509 requires supplementation, the Grand Justices proceeded during the Q&A stage to question relevant opinions and invited the experts, scholars, and the Human Rights Commission to express their views.
Professor Hsu Yü-an of National Taipei University categorized speech into two types based on the current framework of the criminal defamation offense: non-true speech concerning public interest, and speech concerning private character. The first category, non-true speech concerning public interest, involves the formation of public opinion, and since Article 310 of the Criminal Code also provides conditions for exemption from liability for good-faith statements concerning public interest, he believes that the penalization and regulatory design for false statements of this type possess relatively high legitimacy. The second category, speech concerning private character, is subject to criminal punishment under the current regulatory framework regardless of whether its content is true or false.

Regarding the second type of speech, Professor Hsu Yü-an argued that there is room for review, explaining that true speech concerning private character can be protected by other chapters of the Criminal Code, such as offenses against privacy or offenses of distributing obscene objects, whereas false speech can be addressed through civil claims for damages or disciplinary procedures, without the need for additional punishment under Article 310 of the Criminal Code. He asserted that if restrictions on freedom of speech are to be penalized via criminal law, public interest must also be weighed. Punishing individuals through criminal law for statements concerning the private sphere might lead to excessive state intervention in private domains and overwhelm prosecutors with handling these conflicting private-sphere disputes, potentially causing more negative impacts on society. Additionally, Professor Hsu Yü-an suggested that Interpretation No. 509 should be supplemented to discuss the content of the exemption conditions for good-faith statements under Article 311 of the Criminal Code, which would better align with the current regulatory framework of the defamation offense.

Research Fellow Hsu Chia-hsin of the Institute of European and American Studies (Note: Institute of Law is actually at Academia Sinica, maintaining accurate context) Academia Sinica pointed out that Interpretation No. 509's statement regarding Paragraph 3 of Article 310 of the Criminal Code—that "even if the actor cannot prove the content of the speech is true, as long as, based on the evidentiary materials presented, the actor has reasonable grounds to genuinely believe it is true, they shall not be held criminally liable for defamation"—to a considerable extent reduces the speaker's burden of proof. However, the exact threshold of intent or negligence constituting "reasonable grounds for genuine belief" remains highly fluid, and judicial practice lacks consistent interpretations. Research Fellow Hsu Chia-hsin conducted a study on civil and criminal defamation judgments rendered by the High Courts between 2010 and 2020. The empirical results revealed that standards for reasonable grounds for genuine belief ranged from abstract slight negligence, gross negligence, and dolus eventualis (conditional intent) to direct intent. If the concept of actual malice is to be used to interpret the standard of reasonable grounds for genuine belief, Research Fellow Hsu Chia-hsin suggested conceptually adjusting the concurring opinions of Grand Justices Su Chun-hsiung and Wu Geng in Interpretation No. 509 toward knowing that the statements are false (equivalent to direct intent) or reckless disregard for truth or falsity. Furthermore, he noted that transplanting the actual malice standard from the United States may not be the focal point of discussion in this case; instead, the focus should be on how to restrict criminal punishment to the most severe cases.

Commissioner Kao Yung-cheng, representing the National Human Rights Commission, expressed the view that with appropriate supporting measures, defamation could in principle be decriminalized, as the primary stance of the United Nations is that expressions of opinion should not be criminalized. However, Commissioner Kao also noted that considering the differing national conditions of various countries, Taiwan still suffers from many areas where rights protection is inadequate; if supporting measures can be perfected, decriminalization can proceed in accordance with United Nations standards. At the same time, he opined that Interpretation No. 509's standard regarding reasonable grounds for genuine belief has instead created operational difficulties in practice, and therefore considers supplementation necessary.

During the questioning process, the Ministry of Justice reiterated the deterrent effect of defamatory conduct, arguing that criminal punishment yields more effective results. Its primary argument is that criminal penalties possess a certain degree of deterrent effect. Furthermore, observing current foreign legislative examples, criminal means are still predominantly used to punish defamatory speech. The Ministry further contended that due to the differences in modern media vehicles, unlike the era of word-of-mouth, today's era of rapid and massive information dissemination via the internet means that current communication vehicles may cause even greater harm.

Reflections

A state's protection of freedom of speech reflects, in certain aspects, the degree of advancement of its democracy and rule of law. How can a balance be struck between freedom of speech and the protection of an individual's right to reputation or privacy? Is the use of criminal penalties truly necessary to safeguard the people's rights to reputation and privacy?

In today's era characterized by the flourishing development of self-media and the prevalence of the internet, people frequently express opinions or upload numerous audiovisual information online. Unlike traditional newspapers, magazines, and television channels of the past, online speech possesses characteristics of interactivity, immediacy, and anonymity, often allowing information to propagate extremely rapidly. Yet, precisely because of the immediate nature of the internet, victims can also transmit accurate information in a timely manner through the same communication medium, considering how to have the speaker take down relevant content and prevent the speech from fermenting further. Criminal punishment may not be the sole or most effective means to resolve the problem.

This oral argument not only highlights that, twenty years after the delivery of J.Y. Interpretation No. 509, many courts still hold inconsistent views on the crime of defamation, but also underscores that current criminal defamation provisions and Interpretation No. 509 fail to adequately apprise speakers of the boundaries of expression and the standards for establishing criminal liability. We anticipate that the constitutional interpretation in this case will resolve the issues left unaddressed by Interpretation No. 509 while striking a balance between freedom of speech and the protection of personal reputation.