The Constitutionality of Criminal Defamation and its Impact on Civil Infringement to the Right to Reputation

On June 9, 2023, the Taiwan Constitutional Court rendered Judgment 112 Sian-Pan-Zi 8 , declaring the crime of defamation under the Criminal Code constitutional. With this judgment, the long-standing debate in Taiwanese society on the decriminalization of defamation has come to a temporary conclusion. This means that in the future, making defamatory statements about others will still trigger criminal liability. Paying civil compensation may not be enough to have the case closed.

It is not the first time that criminal defamation faces constitutional challenges. In 2000, the Grand Justices issued Judicial Interpretation No. 509, specifically addressing the defense of truth under Article 310(3) of the Criminal Code, which states “one shall not be punished for defamation if one can prove the truth of the defamatory statement; however, this provision shall not apply to cases involving private morality unrelated to public interest.” This interpretation introduced the principle of “reasonable verification,” allowing individuals to avoid punishment if they can prove that, through the verification they have made, a reasonable person would have believed the statement to be true. This “principle of reasonable verification” has also profoundly influenced the development of court rulings on civil infringement to the right to reputation.

However, 20 years after the Judicial Interpretation No. 509 was issued, the Judgement 112 Sian-Pan-Zi 8 has explicitly added a new element to criminal defamation.  That is, "if the defendant did not have actual malice (i.e. the defendant knew or demonstrated “reckless disregard” as to its falsity) when citing the false information, he/she should not be punished." This principle is known as the "principle of actual malice," which originated from the U.S. Supreme Court case - New York Times Co. v. Sullivan (376 U.S. 254 (1964)). This new element will make criminal defamation even more challenging to be proved in the future. In cases involving statements related to public interest, if the victim cannot prove that the defendant has "actual malice", the defendant will not be punished. This change will have serious impact on the conviction rate for criminal defamation.

Based on the fact that Judicial Interpretation No. 509 has been cited by civil courts, Judgment 112 Sian-Pan-Zi 8 Judgment may also be referenced by civil courts in the future. However, this could make civil infringement to the right to reputation difficult to establish as well, which might not be the original intent of the Grand Justices who rendered this judgment. For more discussion, please see "Will the Constitutionality of Criminal Defamation Affect Civil Liability of Infringement to the Right to Reputation?".

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

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The Constitutionality of Criminal Defamation and its Impact on Civil Infringement to the Right to Reputation