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(釋字第 509 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.509 
Date 2000/7/7
Issue (1) Do Paragraphs 1 and 2 of Article 310 of the Criminal Code, which criminalize defamation, violate the principle of proportionality embodied under Article 23 of the Constitution?(1) Does Paragraph 3 of Article 310 of the Criminal Code, which provides truth as an affirmative defense for a person accused of criminal defamation and requiring the accused to show truthfulness, violate the freedom of speech protected under Article 11 of the Constitution?
Holding   The freedom of speech, a fundamental right guaranteed by Article 11 of the Constitution, requires that the government grant a maximum amount of protection for free speech. Only under the purview of the constitutional protection can we fully realize and express ourselves, pursue the truth, and take part in all manners of political and social activities. However, in light of protecting other fundamental rights such as personal reputation and privacy and public interests as well, the freedom of speech is not an absolute right but subject to reasonable statutory restraints imposed upon the communication media. Article 310, Paragraphs 1 and 2, of the Criminal Code criminalizes defamation in order to protect individual legal interests, a necessary countermeasure to prevent one’s infringement of others’ freedoms and rights. Such restraints do not violate Article 23 of the Constitution. Article 310, Paragraph 3, of the Criminal Code provides truth as an affirmative defense against a conviction of criminal defamation. This provided defense purports to protect truthful speeches and to demarcate the reach of the government’s penal power. However, it is not a corollary that for a successful assertion of the defense, an accused disseminator of a defamatory statement would have to carry the burden of proving its truthfulness. To the extent that the accused fails to demonstrate that the defamatory statement is true, as long as the accused has reasonable grounds to believe that the statement was true when disseminated and has proffered evidence to support the belief, the accused must be found not guilty of criminal defamation. This provision does nothing to exempt a public or private prosecutor from carrying his/her burden of proof to show that the accused has the requisite mens rea to damage another person’s reputation, an evidential burden mandated under the criminal procedures, nor does it exempt the court from its obligation of discovering the truth. Accordingly, Article 310, Paragraph 3, of the Criminal Code does not violate the freedom of speech as it is protected under the Constitution.
Reasoning   Article 11 of the Constitution guarantees the right to enjoy the freedom of speech. Such freedom is essential for the diversity of a democratic society. For the freedom of speech not only allows each individual to achieve self-fulfillment, utter his/her opinion freely, pursue the truth, and realize his/her right to know, but also to help the society form a consensus, and encourage civil participation in all manners of rational political and social activities. Thanks to its functions, the government must endeavor to grant a maximum amount of protection to the freedom of speech. However, in light of protecting other individual rights such as personal reputation and privacy and public interests as well, the government may impose reasonable restrictions upon the communication media. The restrictive mechanisms adopted could be civil remedies and/or punitive measures. To make a choice, all of the following factors must be considered: constituents’ habit of abiding by the law, constituents’ respectfulness for the rights of their peers, effectiveness and availability of the prevailing civil remedies, the media professionals’ willingness to comply with their ethics standards in performing their duties, and the effectiveness of sanctions imposed by self-regulatory organizations. Considering our citizenry and all of the above factors, the failure to decriminalize defamation hardly constitutes a violation of the freedom of speech protected under the Constitution. If the law allowed anyone to avoid penalty for defamation by offering monetary compensation, it would be tantamount to issuing them a license to defame, a choice obviously not in line with the constitutional protection of the people’s fundamental rights. Article 310, Paragraph 1, of the Criminal Code provides that “any person who intends to disseminate defamatory statements to the public by originating or circulating them may be subject to imprisonment of one year or less, forced labor, or a fine of 500 dollars (yin-yen) or less.” Paragraph 2 of the same Article further provides that “any person who commits the acts proscribed under Paragraph 1 in writing or pictures is subject to imprisonment of two years or less, forced labor, or a fine of 1,000 dollars (yin-yen) or less.” The statutes distinguish between libel, whereby writing and pictures are applied for perpetration, and slander, whereby spoken words are used for the commission of such acts. Since the distinction comes within the scope of Article 23 of the Constitution without violating the principle of proportionality, it is not unconstitutional and is in the interests of preventing interference with others’ fundamental rights.

  Article 310, the first sentence of Paragraph 3, of the Criminal Code provides that “to the extent that a statement is defamatory, an accused must be found not guilty if the accused is able to show that the statement is true.” This provision prescribes the elements of a defense; that is, a perpetrator who originated or circulated a defamatory statement may be found not guilty of criminal defamation, if the statement is true. Nevertheless, it does not imply that the accused must carry the burden of proof that the defamatory statement is in fact a truthful statement. In the case where the accused has no way of showing the truthfulness of the statement, the court must find the accused not guilty when the evidence proffered for the court’s review shows that the accused has reasonable grounds to believe that the statement was true at the moment of dissemination. Furthermore, this provision does not exempt a public or private prosecutor from his/her statutory burden to prove that the accused has intended to damage another person’s reputation, a burden mandated by the criminal procedures, nor does the provision exempt the court from its duty of discovering the truth. Therefore, Article 310, Paragraph 3, of the Criminal Code does not conflict with the constitutional provision for the protection of the freedom of speech.

  Article 311 of the Criminal Code provides that “statements made in good will on any of the following occasions are not punishable: (1) for the purposes of self-defense, exculpation, or protecting lawful interests; (2) reporting done by civil servants as mandated by their duties; (3) expressing appropriate opinions in connection with public interests or affairs meriting public discussion; or (4) recounting of minutes recorded by any central or local councils, courts or public gatherings.” This provision specifies four statutory affirmative defenses to protect free speech made with good will on a particular occasion. No issue of unconstitutionality has been raised. As to their appropriateness and applicability, it is the job of a presiding court on a case-by-base basis and beyond the scope of this Interpretation.

' Translated by Joe Y.C. Wu.
Opinion
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