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Legislation can stifle free speech

`The other concern for the media should be whether or not this will result in self-constraint in reporting that could impede the public's right to be informed.'

The lawsuit between Vice President Annette Lu (呂秀蓮) and The Journalist magazine (新新聞) has finally finished, and the Supreme Court has upheld the Grand Justice's constitutional interpretation of Article 509; that is, the principles of "actual malice" and "reasonable grounds to believe the truth of one's statements" are not applicable to civil infringement cases.

This has caused much frustration within the media, as well as making some believe it could trigger the chilling effect in which free speech is stifled by fear of punishment.

Certainly, as far as the protection of freedom of speech is concerned, this High Court ruling seems rather backward and conservative.

However, it also reflects a social check on the media, who would do well to reflect on the implications. While they are brandishing the slogan of freedom of the press, they should spare some time to think about the real purpose and nature of this freedom.

The Supreme Court's ruling in this case hinges on whether Article 509 applies to a civil libel suit.

The reason behind the decision is that the requisites for civil infringement differ from those of a libel case in criminal law.

The former takes into account intentional as well as unintentional behavior, whereas criminal law only considers libelous or slanderous behavior conducted with intent.

In civil cases the media can be held accountable for a lack of diligence. In this particular case The Journalist was found wanting in its investigation, and should consequently shoulder the burden of the compensation.

The interpretation of Article 509 was concerned with intentional libelous behavior in criminal cases, and did not cover transgressions of the civil law.

This reading certainly has a basis in the respective requisites of the civil and criminal laws, but ignores the fact that the principle of "actual malice" had its precedent in a civil case in the US, The New York Times versus Sullivan.

Similar instances of media behavior should be dealt with equally within the legal system. To apply different standards to civil and criminal cases is unjustifiable when it comes to the constitutional right to freedom of speech.

Should the principles of "actual malice" and "reasonable grounds" be used as a get-out clause for the media? Of course not.

The media should not be exempt from legal responsibility if they intentionally neglect to thoroughly check their facts.

The Supreme Court interpretation of Article 509 has set the concept of having reasonable grounds to believe in the truth of one's claims as its standard, and the media should at the very least confirm the veracity of their reports according to this principle. Failure to do so constitutes an evasion of legal responsibility on both the criminal and civil level.

Both "actual malice" and "reasonable grounds" should be seen in terms of the liberalization of the media's duty of diligence, not its abandonment.

In dealing with the degree and actual nature of the media's duty of diligence, the Supreme Court should be able to use the principle of reasonable grounds as a benchmark from which to judge whether any negligence has occurred.

Whether or not The Journalist had reasonable grounds in this case is a matter to be decided from the facts at hand.

However, in the presentation of their defense, the very least we could have expected from The Journalist was to try to persuade the courts with some evidence, rather than vacuous political rhetoric and hearsay.

The other concern for the media should be whether or not this will result in self-constraint in reporting that could impede the public's right to be informed.

Given that many media reports will lead to a certain degree of harm to the individual being reported on, the media will be required to check that reports are reasonable. In performing its function as the disseminator of information, the media should try to keep the damage it does to a minimum, in particular with information from questionable sources.

In terms of the need for damage control, it is clearly important for the media to have the advantage over the individuals they report on. It is consequently quite reasonable to demand a certain amount of diligence on the part of the media.

When the courts pass judgment in infringement cases, they are dealing with the conflict between and the freedom of the press and the right of the individual to keep their name unsullied.

The former is an important mechanism for the welfare of the public, the latter essential for the dignity of the individual.

Obviously, in order to give full play to their function, the media cannot give way too much in the face of legal requirements regarding the rights of the individual, but there is a limit to how much they actually have to compromise.

If society demands stronger legal checks on the media, and therefore changes the legal protection, it will be the media that stands to lose the most.

Karl Tzan is a lawyer and assistant professor in the Department of Law at Shih Hsin University.

TRANSLATED BY PAUL COOPER
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