Taiwan's criminal defamation law

A way to protect reputations or a barrier to free speech?

By Paul Shelton



In Taiwan, defamation is treated as a criminal offense under the Criminal Code. Defamation under Taiwan’s Criminal Code, particularly under Articles 309 and 310, addresses the unlawful act of damaging another person's reputation through false statements or insults. That definition is certainly broad and its breadth should give everyone pause. This article seeks to provide a factual review of the application of Taiwan’s criminal defamation law as opposed to treating defamation as a civil matter, as practiced in several other countries.

The English language social media in Taiwan is often populated with rants about certain incidents, typically the result of a dispute arising in relation to rental apartments, disputes between neighbours (for various reasons) or, more often, traffic incidents involving minor damage to vehicles.

These rants are often swiftly met with other social media users warning the poster to take down the post lest they fall foul of Taiwan’s criminal defamation offence under the Criminal Code.

Globally, defamation is not always regarded as a criminal offence. In many countries defamation is regarded as a “tort” (a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act) and therefore a civil dispute between parties. This is typical in countries that are known as common law countries as opposed to those countries that follow a more codified approach. We will review common law defamation approach later in this article.

Those who advocate for defamation as a criminal offense will offer up arguments such as:   

• Criminalizing defamation underscores the importance of protecting individuals' reputations from false statements, particularly false statements that could harm their personal and professional lives. Criminalizing defamation provides a legal avenue for individuals to seek redress and hold perpetrators accountable.
• The threat of criminal prosecution can deter individuals from making false and damaging statements about others. Having a criminal record can have serious implications for anyone convicted of such offences. In Taiwan, these implications can impact one’s employment and even visa status.
• It is also argued that criminal cases can be processed more quickly than civil cases, thus providing swifter justice for victims of defamation. This is a valid point against civil cases, which can drag on for years in some jurisdictions, but it may also lead to hasty criminal actions where perhaps remediation may be a better course of action.
• Criminal defamation laws can be said to reduce the spread of false information and ultimately a more informed and respectful public discourse.
• Proponents of criminal defamation will also often argue that criminal laws offer additional protection to vulnerable individuals who might not have the resources to pursue civil defamation cases. Again, an arguably valid point as civil litigation is said to favour those with “deep pockets”.

However, there are also legitimate criticisms of criminal defamation laws, particularly the potential for abuse by those in power who know how to react quickly when they feel they have been defamed.

Criticisms associated with criminal defamation in Taiwan include, but are not limited to:

• The possibility of discouraging individuals from speaking freely, especially when discussing matters of public interest or criticizing public figures and institutions. Fear of criminal prosecution may lead to unnecessary self-censorship and a reduction in open and honest discourse.
• Misuse of the criminal law can undermine press freedom and hinder investigative journalism, which is crucial for holding those in power accountable.
• Penalties for criminal defamation can even include imprisonment. This may seem disproportionately severe when considering the actual harm caused by defamatory statements, especially those said in the heat of the moment.
• Should criminal defamation actions be allowed to be a burden to what is often an already stretched to the limit criminal justice system? Surely there are more serious crimes that warrant more immediate attention. Criminal sanctions for defamation can also lead to perceptions of injustice, especially when the actual harm is arguably minor.
• The application of criminal defamation laws can be inconsistent and subjectively applied. For example, is a heated public argument over a traffic incident an appropriate application of criminal defamation?
   

On the basis of the concerns noted above some countries have moved towards decriminalizing defamation and instead look to the tort of defamation. Here defamation involves making a false statement about someone that causes actual harm to their reputation.

The tort of defamation usually requires that:

• The statement is false and not simply disparaging. Truthful statements, no matter how damaging, do not constitute defamation.
• The statement must be defamatory, that is, it must harm the reputation of the person it concerns, lowering them in the estimation of the community.
• Importantly, the defamatory statement must be communicated to a third party. It is not enough for the statement to be made directly to the person it concerns. Perhaps this is the cause for concern with statements made on Taiwan’s social media.
• The statement must refer to both the plaintiff and the defendant. Actual identifiability is needed, not just an implication.
• There must be a showing of fault which may involve negligence for private individuals or actual malice (knowledge of falsity or reckless disregard for the truth) for public figures.
• Importantly, for the plaintiff, there must be demonstrable evidence that the defamatory statement caused harm. This harm is often to their reputation, but it can also include emotional distress or financial losses.
   

The tort of defamation allows several defences, such as:  

• A true statement, even if damaging, can be a complete defence to defamation.
• A simple and genuine statement of opinion are typically not actionable as defamation.
• In some cases, a timely and sufficient retraction of the defamatory statement may mitigate damages or serve as a defence (and, as we shall see below, this may, occasionally, also apply in criminal defamation proceedings).
   

There is also the sometimes the controversial defence of “privilege”. This occurs when politicians use the privilege of legislative proceedings to make statements that they would not otherwise make in the public arena. Use of privilege is often derided by the general public as a possible abuse of power.  

As noted above, defamation is criminalized in many countries around the world and not just Taiwan. The specifics of each county’s criminal law can vary greatly (especially where the law permits imprisonment) but examples (and some may be surprising) include:

• Nigeria – under certain circumstances 
• Kenya – under certain circumstances, but reform may be coming
• South Africa: primarily a civil matter, but certain forms of defamation can be prosecuted criminally
• Canada - Libel in written publications, can be a criminal offense
• United States - While defamation is generally a civil matter, certain states have criminal libel laws
• Australia - Some states and territories have criminal defamation laws, although they are rarely used
• New Zealand - Criminal defamation laws exist, though they are not frequently enforced.