Constitutional interpretation No. 617 from the Council of Grand Justices released on Oct. 27 affirmed that speech and information about sexual topics falls within the scope of freedom of speech protected by the Constitu-tion, and splits obscenity as defined in Criminal Code Article 235 into "hard" and "soft" categories to be handled differently.
"Hard" information falls within the boundaries of what is currently illegal, while "soft" information may be exempt from fines if fitting measures are taken to keep such information safely isolated.
In a minority opinion, some justices wrote that freedom of speech and information about sexual matters did not need to be treated as criminal activities.
They even suggested that the fines aimed at prohibiting the distribution of publications were disproportionate, and that as a result Article 235 is unconstitutional.
The article was amended in 1999. The draft law was even more advanced than Ruling 617, but afterwards it was amended to refer specifically to "broadcasts," adding audio and images to the list of offending content and changed "written or auditory content" to "auditory content."
There was very little change, however, to the standard of judgment of what was considered obscene.
The limits of freedom of speech have always been subject to dispute. Many laws are like Criminal Code Article 235 where the adoption of the understanding of the same clause or noun to changing times puts the knowledge of those enforcing the law to the test and makes obvious the importance of judges' rulings in shaping the law.
In 2004, for example, the first station in the country devoted to women's issues, Sister Radio, was fined by the Government Information Office (GIO) for broadcasting the moans of women in bed. Sister Radio brought a lawsuit against the GIO in response, and won the case in the High Court.
The court reasoned that "In an open and diverse society, gay and lesbian topics are not topics that the public cannot discuss, and there is even a need to expand the limits of this discussion ... That part of the broadcast [the moans] is obviously not beautified, and cannot be viewed in isolation. The entire program's contents should be considered in the judgment."
The justices in this case used the Radio and Television Law (
The treatment of slander and libel in the Criminal Law (
Following the liberalization of society and the evolution of the media, increasingly louder calls for the decriminalization of slander and libel were heard.
In 2000, constitutional interpretation 509 offered an important interpretation of the limits to freedom of speech and personal reputation.
In this interpretation the grand justices ruled that: "The freedom of speech [is] a fundamental right guaranteed by Article 11 of the Constitution ... However, in light of protecting other fundamental rights such as personal reputation and privacy and public interests as well, freedom of speech is not an absolute right but subject to reasonable statutory restraints imposed upon the communication media."
Although this does not directly decriminalize slander and libel, it does shift the burden of proof and sets a standard of "truly malicious intent" so that as long as a reporter can reasonably believe that what he or she reports is true, then it can be reported and the act is not considered criminal.
Although the national mood and cultural environment are not at the point where obscenity or slander and libel can be decriminalized, the judiciary's actions in recent years have demonstrated an effort to gradually relax restrictions on freedom of speech. On the whole, although there were different views among the grand justices on whether Article 235 was unconstitutional, constitutional interpretation 617 expands the limits of freedom of speech by limiting the definition of obscenity. This unprecedented new reading of the Constitution is worthy of affirmation.
Freda Yeh is a lawyer with the WTW Commercial Law Firm in Taipei.
Translated by Jason Cox
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