President Ma Ying-jeou (馬英九) has retracted all defamation lawsuits filed under his own name during the presidential campaign, saying he wanted to heal the social rift that opened up during the campaign. However, Ma has been minister of justice, so he should be able to look at defamation from a judicial reform perspective and propose an amendment to the Criminal Code (刑法) that decriminalizes defamation, putting an end to a waste of judicial resources.
Article 310 of the Criminal Code states: “A person who points out or circulates a fact that will injure the reputation of another with intent that it be communicated to the public commits the offense of defamation and shall be punished with imprisonment for not more than one year, detention, or a fine of not more than NT$500. A person who by circulating a writing or drawing commits an offense specified in the preceding paragraph shall be punished with imprisonment for not more than two years, detention, or a fine of not more than NT$1,000. A person who can prove the truth of the defamatory fact shall not be punished for the offense of defamation unless the fact concerns private life and is of no public concern.”
Defamation lawsuits are often the preserve of celebrities, as ordinary people are seldom defamed publicly. The general public rarely has the chance of being defamed, and if it does occur, judges tend to request that the cases be settled out of court to avoid wasting time. The purpose of such lawsuits seems to be to provide tabloids with gossip, and going to court often only aggravates the situation.
Unfortunately, in Taiwan’s negative campaign culture, almost any material can be legally challenged. Whether a report is true or not, the candidate under attack will file a defamation lawsuit to avoid the impression of a tacit admission. Thus, a lawsuit is aimed at proving one’s innocence, showing that one doesn’t fear an investigation and consolidating support. Since such attacks carry a legal penalty, why do so many challenge the law?
The reason is simple: Big gains come at small costs. Defamation carries a light penalty and a candidate will almost never be sentenced. Public insults will at the most result in a short detention or a fine. The penalty for defamation is imprisonment up to one year, and for aggravated defamation it is imprisonment up to two years, while those who violate the Election and Recall Act (選舉罷免法) may be punished with imprisonment for up to five years. Violations with short-term penalties can be converted into fines or probation. A candidate will not go to jail for defamation and will have a brighter political future. No wonder Taiwan’s politicians defame each other.
There are countless defamation lawsuits. Some call them a judicial sideshow to elections that attracts little attention afterward. Prosecutors, judges and even the parties involved tend to ignore them. Those who lose an election often withdraw from politics and do not appear in court. Most winners no longer care about a lawsuit, and may retract it to set a good example. “Settling a defamation suit by leaving it unsettled” has become an unwritten law in Taiwan’s elections.
A defamation lawsuit has become the cheapest tool for a politician to promote himself. Such lawsuits waste enormous judicial resources. Even if a defendant is found guilty, the ruling cannot highlight the judiciary’s function to arrest criminals and expose their crimes, and instead it will use up resources that should be used to investigate more serious crimes. If defamation is decriminalized, how should we then deal with such cases? It is simple: File a civil lawsuit for damage to one’s reputation. Then the parties involved will have to pay the legal fees themselves.