In modern society, social media platforms are widely used as channels for expressing personal opinions.  Posts or short videos on such platforms have become common means of public expression.  However, if such posts or video clips contain statements infringing another person's reputation, in addition to seeking compensation for damages, can the victim also demand a “public apology” from the offender?  If not, what alternative disposition may serve to restore the victim's reputation?  This issue concerns the “proper disposition for restoring reputation” under Article 195, Paragraph 1, latter part, of the Civil Code, and involves the fundamental rights conflict between the freedom of speech and the protection of the right to reputation.  This issue has been interpreted differently in judicial practice.

First, the Grand Justices Council (the predecessor to the Constitutional Court) issued Interpretation No. 656 on April 3, 2009, stating that “…In the event such proper disposition for the restoration of reputation entails a judgment that orders a public apology but does not involve self-humiliation or degradation of humanity, it does not violate the Principle of Proportionality and does not contradict the freedom to withhold expression protected under Article 23 of the Constitution.”  Accordingly, courts have long regarded an order for a “public apology” as a proper disposition for restoring reputation.

However, some offenders in infringement of reputation cases contended that being compelled by a court to apologize infringed upon their “freedom to withhold expression” and they petitioned for constitutional interpretation.  On February 25, 2022, the Constitutional Court rendered Judgment 112-Sian-Pan-Zi-2, which held that “… ‘Proper disposition’ shall not include a judicial order requiring the offender to apologize, in order to be consistent with the constitutional protection of freedom of speech and freedom of thought.”  From that judgment onward, it appeared that courts could no longer order public apology as a disposition of restoring reputation.  Nevertheless, the Constitutional Court, in its reasoning, provided an alternative approach “…For example, within a reasonable scope, requiring the offender to bear the cost of publishing a notice of the victim’s favorable judgment, or to publish all or part of the judgment in mass media, could serve as alternative disposition.”  Thus, publishing such judgment notices, at least, may be considered as a viable means of restoring reputation.

A recent case worth close observation involves the well-known Taiwanese influencer who, on August 8, 2019, insulted an entertainer with vulgar language on his personal YouTube channel (“Channel”).  The entertainer subsequently filed a lawsuit for infringement of reputation, and the case vividly reflects the evolution of judicial perspectives on this issue.

The influencer lost in the first instance.  On appeal, the second-instance court ordered the influencer to make a public apology on YouTube and Facebook.  However, upon the influencer's further appealed to the Supreme Court, the Constitutional Court had already issued Judgment 112-Sian-Pan-Zi-2, which held that compelled apologies were unconstitutional.  The Supreme Court, therefore, set aside and remanded the case on that ground.^[1]

In the first retrial, the court ordered the influencer to publish a notice of judgment on YouTube.  While this appeared to comply with the Constitutional Court’s ruling, the influencer appealed once again, and the Supreme Court again set aside and remanded the case.^[2] The reasoning was that a YouTube channel and Facebook fan page are closely linked to personal identity and self-expression; requiring the channel owner (the influencer) to post content without his genuine consent, there would be concerns of infringing the freedom to withhold expression.

Upon a second retrial, the court ordered the influencer to publish the notice of judgment for one day on the top banner of the homepage of United Daily News Online.^[3]Dissatisfied, the influencer filed another appeal to the Supreme Court again, where the case is still pending.

This case illustrates that, regarding proper disposition for restoring reputation, even though the Constitutional Court has pointed to possible alternatives, judicial practice continues to develop through individual cases.  In this case, the court initially ordered the influencer to make a public apology, later changed it to publishing the judgment notice on social media, and eventually required publication on the homepage of a news website.  Although the case has not yet reached a final judgment, certain guidelines can be inferred: courts may require offenders to publish judgment notices in mass media, but not on their personal social media platforms; otherwise, if the offender refuses, such order may raise concerns of infringing the freedom to withhold expression.

Readers may wonder whether publishing in mass media would also infringe upon the offender's freedom to withhold expression.  In the author's view, personal social media is operated by the individual offender and represents his own speech.  Ordering publication on such platforms would effectively compel the offender to perform an act against his will, as noted in the Civil Judgement by Supreme Court 112-Tai-Shang-Zi 990.  In contrast, publication through mass media involves a third party and can be interpreted as not being the offender's own expression, thereby constituting a lesser infringement upon his freedom to withhold expression.  Nevertheless, the outcome of the second appeal to the Supreme Court in this case remains to be seen.

(The article is originally in Chinese which can be found here.)