Fri, Nov 27, 2015 page8

• No need for furor over Sunshine Justice site

  • By Wu Ching-chin 吳景欽
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  The ministry of Justice has demanded that the Judicial Reform Foundation shut down its Sunshine Justice Web site, saying that the site has leaked personal information and done more damage than good, but it did not clarify what specific information was leaked and what laws were broken.

  According to Article 41, Clause 1 of the Personal Information Protection Act (個人資料保護法), if a non-governmental organization collects personal information and uses it for something other than specific purposes, the guilty parties could face a prison sentence of up to two years.

  Data on more than 3,000 judges and prosecutors listed on the Sunshine Justice Web site comprise mainly of names, educational backgrounds, records of commendations or disciplinary actions, and news articles about the personnel.

  While the data falls within the scope of personal information that the act seeks to protect, as stipulated in Article 2, the information on the Web site is already in the public domain.

  This means the Web site complies with Exception No. 7 of Article 19 and is therefore legally recognized as providing information available from a publicly accessible source, which does not constitute leaking personal information.

  However, the clause also states that should it be advantageous to protect the information, not only do those concerned have the right to demand the removal, or prevent the use, of said information, but they may also seek disciplinary action against the perpetrators. The question is: Is there a higher interest more worthy of protection?

  First, it must be considered whether the matter involves the principle that “an investigation shall not be public.” Article 245 of the Code of Criminal Procedure (刑事訴訟法) specifies the individuals concerned as public prosecutors or public prosecuting affairs officials, judicial police officers, public officials who take part in the proceedings and the plaintiff/defendant.

  Unfortunately, it is not unusual for law enforcement officials to leak information to the media while saying that details of an ongoing investigation are not to be made public. Some of the people whose personal information is published on the Web site are connected to six cases for which the investigations are already completed, and therefore their names do not constitute leaking confidential information involving an ongoing investigation.

  If the authorities are suggesting that the foundation’s actions are illegal for this reason, then they are obviously barking up the wrong tree.

  Second, as to whether revealing such information could affect a judge’s impartiality, it should be considered that as trials are open to the public, revealing information pertaining to the cases would reinforce the principle of openness of the trial.

  Article 18 of the Freedom of Government Information Law (政府資訊公開法) stipulates that if revealing such information would “obstruct the investigation, prosecution, or law enforcement; impair the fair trial of a defendant, or cause injury to a person’s life, body, freedom or property,” then such provision should be restricted.

  The problem is that this provision is ambiguous, making it difficult to determine whether a given action violates it. Furthermore, names of defendants and third party individuals on the Web site have been altered, so cannot be viewed as a violation privacy.

  If the provision of this information does violate the privacy rights of the people involved, or harm their reputations, the prosecutors and judges know the law more than most people, and could take the foundation to court. There is no need for all this fuss about shutting it down.

  Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.

  Translated by Paul Cooper
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