Court Observation Insights: Oral Argument Hearing for the Risu Defamation Criminal Appeal

Background

In May 2023, the "Taiwan Women's Link" initiated a reporting campaign against RISU. Subsequently, social activist Wang Ying-ta responded to the reporting campaign and began reporting the group. However, as the number of reports accumulated, Wang suspected that the administrators of the RISU group overlapped with those of the "BaoLiao GongShe" (爆料公社) group, even believing that some administrators were involved in both groups, referred to as the "Bao-system administrators."

On June 3, 2023, Wang Ying-ta posted on Facebook: "I went through and reported the Risu groups I could find on Facebook one by one, and discovered that one of the managers for several of these groups is the fan account named 'Bao-system Administrator.' Upon checking, I found out it was actually BaoLiao GongShe! Could it be that the internet company BaoLiao GongShe is directly operating or helping manage the shady business of leaking private intimate videos like Risu? Absolutely shameful!"

Consequently, BaoLiao GongShe Co., Ltd. filed a criminal complaint against Wang Ying-ta for defamation and sought civil damages. The prosecutors' office subsequently held a single investigative hearing, indicted Wang within a month, and the court eventually convicted Wang of aggravated defamation in the first instance, sentencing him to 50 days of detention (convertible to a fine).

Defense Arguments

The defense argued that the defendant spoke based on publicly available information after conducting fact-checking. They emphasized that in modern times, mentioning the term "Bao-system" naturally evokes BaoLiao GongShe. Furthermore, the defendant is an ordinary person with just over 5,000 followers, whereas BaoLiao GongShe is a company followed by millions, creating a vast disparity in influence. The defendant posted based on facts after conducting verification, exercising their right to freedom of speech and participating in social public issues. Convicting the defendant under these circumstances would create a chilling effect, making people afraid to express their opinions and participate in public affairs.

Prosecution Arguments

(The plaintiff made statements.) Following the first-instance judgment, the plaintiff argued that the defendant showed no remorse, had not yet removed the post, and expressed no willingness to reconcile or compensate, thus maintaining that the defendant is guilty.

Insights and Reflections

Regarding the Court Hearing

Because this was an observation of a second-instance oral argument hearing, the speaking speed and pace of the defense, prosecution, and even the judge were extremely fast, which was a bit hard to keep up with for a first-time observer. During our subsequent conversation, the lawyer explained that this court session was like a summary of everything that had happened previously, reminding the judge once again of the defense's arguments and the evidence presented. Therefore, the entire hearing ended quite quickly. This session was also the final hearing for the case; regardless of the ultimate guilty or not-guilty verdict, no retrial can be sought.

Defining Freedom of Speech

After the hearing, I had a conversation with the client and the lawyer. Hearing the client recount the events forced me to ponder how the boundaries of freedom of speech are defined. Prompted by this case, I looked up how our Criminal Code defines defamation—having previously only known of the crime without knowing its legal definition, I wanted to use this opportunity to better understand how our Criminal Code defines and punishes it. According to Article 310 of the Criminal Code (Defamation and Exemption Provisions): (1) A person who, with intent to distribute to the public, points out or recounts anything that may impair the reputation of another shall commit the offense of defamation, punishable by imprisonment for not more than one year, detention, or a fine of not more than 15,000 NTD. (2) A person who commits the offense in the preceding paragraph through the distribution of writings or pictures shall be punished by imprisonment for not more than two years, detention, or a fine of not more than 30,000 NTD. (3) A person who can prove that the defamed matter is true shall not be punished, provided that this shall not apply to matters concerning private conduct which are unrelated to public interests. The defense lawyer continuously emphasized during their defense that the defendant had verified the information before posting and expressing their thoughts, attempting to use the third paragraph as a breakthrough for an acquittal. This made me wonder: for example, if someone merely expresses their subjective thoughts by leaving a Google review saying a restaurant's food is unpalatable and not to their taste, could the restaurant sue them for defamation? The lawyer replied that they could file a lawsuit, though the chances of success are low. However, as long as the other party files a lawsuit, the court will issue a notice, which is ultimately a hassle for both sides.

Through this court observation, I feel that viewing the definition of freedom of speech solely through Article 310 of the Criminal Code appears too vague and overly subjective. As long as someone perceives another's speech as infringing upon their reputation, they can file a lawsuit. Even if the speaker is discussing public affairs, they could still be convicted. Will this verdict cause the public to hesitate, deliberate at length, or even fear facing lawsuits when wanting to participate in public affairs and express opinions in the future, thereby eroding their willingness to engage in public issues? For these reasons, I believe the definition of freedom of speech is overly ambiguous.

The court proceedings moved remarkably fast, with neither the defense nor the prosecution making superfluous statements, simply reiterating and emphasizing the core points of the previous trial. Consequently, the issue that occupied my thoughts the most throughout the entire proceeding was what freedom of speech truly is, and whether everyday conversations might have already inadvertently crossed into defamation multiple times without one realizing it. Moving forward, aside from following the subsequent rulings of this case, I will continue to pay attention to related issues in hopes of gaining a deeper understanding of how our laws regulate freedom of speech.

References

• Taiwan New Taipei District Court 112年度易字第1395號 Criminal Judgment
• Court Observation Recruitment | Criminal Oral Arguments | Following the Reporting Wave against the Sexual Intimate Images RISU Group... (Second Instance Oral Argument Hearing)
• Joint Statement | "Following the Reporting Wave against the Sexual Intimate Images RISU Group..." — Civil Society Organizations' Joint Statement on the First-Instance Verdict of the Risu Defamation Lawsuit