The Constitutional Court yesterday ruled against decriminalizing defamation, but narrowed the scope of the crime to intentionally making a false statement and displaying gross negligence in verifying a statement’s truthfulness before dissemination.
Disseminating a false statement cannot be considered libel or slander if there was a reasonable effort to verify its truthfulness, the court’s abstract for Constitutional Judgement No. 8, 2023, says.
This means that the burden is on prosecutors to prove intent or negligence on the part of the defendant, it said.
Photo: Wang Yi-sung, Taipei Times
Defamation is defined by the Criminal Code as a reputationally injurious statement that is false or about a matter of no concern to the public, said Judicial Yuan President Hsu Tzong-li (許宗力), who also serves as the court’s presiding judge.
Information or evidence disseminated following a reasonable process of investigation and verification is exempt from defamation, even if untrue, he said.
The standard of tenability should be determined on an individual basis after weighing the right to reputation with the right to the freedom of speech, which are equally protected under the Constitution, he said.
When applied according to the above standards, the penalty for defamation does not contravene the constitutional principle of proportionality, he said, citing a precedent established by Judicial Yuan Interpretation No. 509.
The court on March 14 heard the debate for Chu Cheng-sheng (朱長生) et al versus the Judicial Yuan, which brought about the constitutional judgement.
The Judicial Yuan at the time said that the doctrine of legislative supremacy that grants precedence to the legislature’s authority to make laws over the courts should be applied to any conflict between the right to free speech and the right to reputation and privacy.
Individual liberties are sufficiently protected by the standards of actual malice and negligence established in Interpretation No. 509 and the due process of the criminal justice system, it said.
Defamation laws are widely utilized in other nations, and the right to protection against attacks on reputation needs to be upheld under current social conditions, it said.
The state has a justifiable interest to uphold democracy by punishing people who spread false statements about public matters to injure the reputation of others, National Taipei University professor of law Hsu Yu-an (徐育安) said.
The judgement, which excludes good-faith errors from punishment and targets those who intentionally spread falsehoods, is in keeping with the spirit of Interpretation No. 509 to limit state inference on speech, he said.
However, Hsu Chia-shin (許家馨), an assistant research fellow at Academia Sinica’s Institutum Iurisprudentiae, said that empirical evidence has shown that Interpretation No. 509’s definition of reasonableness is not clear to law practitioners.
The knowledge of falsehood or willful blindness toward it should be the defining element of criminal defamation, she said.
Interpretation No. 509 needs to be expanded to reconcile different opinions about the standard for the crime of defamation, National Human Rights Commission member Kao Yung-cheng (高涌誠) said.
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