Sun, Jan 14, 2018 page6

• EDITORIAL: Libel should be a civil matter

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  A breakfast shop in Tainan that provides free meals to disadvantaged families announced that it was being sued after a disagreement with a customer was not resolved through arbitration.

  A report on Thursday from the Chinese-language United Daily News said the disagreement occurred last month when a mother received the wrong order for her son and was told she had a bad attitude when she asked for it to be remade.

  If the judge rules in favor of the plaintiff, the defendant will face criminal charges under the Offenses Against Reputation and Credit (妨害名譽及信用罪). Slander and defamation are criminal offenses under Articles 309 and 310 of the Criminal Code and an offender is subject to a fine or up to two years in jail if investigators determine that the offensive statements were publicly disseminated.

  The 1966 International Covenant on Civil and Political Rights — to which Taiwan was a signatory before being expelled from the UN — determined that punishing libel and defamation as criminal offenses is a violation of individual rights. The UN Human Rights Committee reiterated this position in 2012.

  Decriminalizing libel and defamation, which has been brought up by Taiwanese law experts numerous times over the past two decades, is an important step in strengthening the nation’s democracy.

  The issue was first considered seriously in 2000, when Chen Chih-hsiang (陳志祥), then a Taipei District Court trial judge, called for an interpretation of the law while presiding over a libel case between a High Court judge and two officials of the Judicial Reform Foundation.

  The Council of Grand Justices determined that criminal liability, rather than civil proceedings, is a more appropriate means given the “circumstances of the country.” They did not elaborate on what circumstances they were referring to, but added: “If an intrusion of a person’s reputation can be resolved with civil compensation, then rich people would be able to defame others as much as they wish. This is not what constitutional protection is meant to be.”

  Following the council’s interpretation, Lin Tzu-yi (林子儀), a professor of constitutional law at National Taiwan University who specializes in freedom of expression, challenged the council’s take on free expression, calling it a “backward” decision.

  In March last year, the national affairs conference on judicial reform discussed the issue when they met for their fifth subcommittee meeting at the Judicial Yuan.

  Taiwan National Chiao Tung University law professor Lin Chih-chieh (林志潔), a leading member of the subcommittee, echoed others’ suggestions that cases related to insult, defamation and slander should be filed with civil courts, saying: “Prosecution of offenses relating to freedom of expression contravene the protection of freedom of speech and freedom of the press.”

  Trying libel and defamation cases as criminal offenses ties up prosecutors and investigators, and leaves the law susceptible to abuse for vindictive purposes.

  Taiwan also does not recognize some of the defenses against libel claims that most other covenant signatories recognize.

  For example, in most nations, assertions made as expressions of opinion rather than statements of fact are usually dismissed, because opinions are inherently not falsifiable. Also, in most jurisdictions, statements made in anger, such as calling someone “an arse” during a drunken argument, would likely be considered mere vulgar abuse and not defamatory. This is not the case in Taiwan, where prosecutors approach these statements as factual assertions.

  Libel laws are important for the protection of people’s reputations and financial livelihoods, but should not cause people to live in perpetual fear that they might unintentionally say the wrong thing at the wrong time and end up embroiled in a lawsuit. Libel should be handled by civil courts that are well-equipped to determine whether a statement has caused real damage.
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