The Problem of Taiwan’s Libel Laws – How to avoid being sued and understanding the law

Taiwan’s democracy, civil society, and all round freedoms are something to be proud of. But, there is one problem, freedom of speech isn’t so free. In Taiwan, defamation and public humiliation is, incredibly, a criminal offense under Article 310 of the Criminal Code. You might be thinking, “what’s the big deal about Taiwan’s libel law then?”, well, it is so weak that you can be sued for any comment that could be perceived as negative.

From schoolyard name calling to stating facts about individuals, companies, and politicians, you are leaving yourself open to the possibility of being sued. Don’t believe me? Check out this blog by Kelly Warner Law and how someone was ordered to pay $8,000 NTD for an insult.

“As of March 14, 2012, a Taiwanese was convicted in a civil suit for defamation and was ordered to pay $8000 TWD in compensation ($270 USD) for making insulting remarks about her sister-in-law’s breasts, claiming that the sister-in-law did not have any.”

The worst part is, you can be sued for swearing at someone, flipping the middle finger, calling them out on doing something wrong that might make them embarrassed or look bad to others, and pretty much, if you say something that someone doesn’t agree with that hurts their feelings, you could be sued.

Just a warning, I’m not a lawyer, but I am just looking to give some insights into a law that affects a lot of people in Taiwan.

What does the law say?

There are offenses against reputation and credit that are quite honestly, ridiculous. The law states a lot about defamation, but generally speaking, under Chapter 27 of the Criminal Code, you need to remember the following:

  • You can be sentenced to short-term imprisonment (2-years) or be forced to pay up to as much as $30,000 NTD for publicly insulting someone
  • Even if the information you disseminate is “fact”, you could face a short-term time in prison, or pay up to pay, if the information is communicated to the public.
  • Likewise, if you circulate anything through writing or drawing, you can also be sentenced to imprisonment and/or be fined.
  • There are circumstances that you can defend yourself against being charged, namely:
    1. For self-defense, self-justification, or the protection of legal interest
    2. If the report that defames or causes public insult is made by a public official in their official capacity
    3. It is fair comment on a fact subject to public criticism
    4. It is a fair comment on the proceedings of a national or local assembly, court, or a public meeting
  • You can still be sued if you insult a deceased person by their family and descendants. In other words, make fun of Chiang Kai-shek and his family members could technically sue you for defamation.

Issues with Chapter 27

The problem with this chapter is simple, you could be right in saying someone is disreputable and discredit them publicly, but that person can still sue you.

It is well-known that foreigners in Taiwan have been sued for giving the middle finger and other gestures. There are multiple cases of foreigners and locals being sued for basically schoolyard insults for issues that do not really affect reputation, but rather “feelings”.

The reason why the law is so weak and allows people to take anyone to court over schoolyard insults and tiny infractions is because the law was changed in 2000 by Chen Chih-hsiang (陳志祥) and the Taipei Times outlines why:

“The Council of Grand Justices determined that criminal liability, rather than civil proceedings, is a more appropriate means given the “circumstances of the country.” They did not elaborate on what circumstances they were referring to, but added: “If an intrusion of a person’s reputation can be resolved with civil compensation, then rich people would be able to defame others as much as they wish. This is not what constitutional protection is meant to be.”

What used to be a civil matter, is now a criminal one and the reasoning makes little to no sense. What they equate is that if someone is rich, they can pay out all the civil suits they want and still continue to insult someone. So, if they make defamation a criminal offense, the rich will be less likely to insult people.

Only problem is, this is not the reality, and people that defend themselves by showing how others are doing disreputable things are getting criminal records. People that say “fuck you” or show the middle finger to people that deserve it or not are getting fined and criminal records. It is ludicrous and goes beyond the pale.

Defamation and Freedom of Speech

I lived in China and I have seen first-hand what censorship and a lack of freedom of speech looks like. Taiwan is not like China, in that there is transparency to discuss things like 228, political, societal, and culturally sensitive topics. You can see for yourselves how the LGBT community flourished and got support in 2016 for same-sex marriage, something that would hardly be openly discussed on a national level in China.

However, defamation laws have the opposite effect of what Chen Chih-hsiang had intended. Instead of preventing rich people from abusing the Criminal Code, the law is now allowing businesses, politicians, and individuals to offset criticism and sue other individuals, businesses, and journalists from exposing and discussing questionable things openly.

Instead, they have to worry about being sued by the powerful.

Also, ordinary people have to watch out in case they let a small insult blurb out, or to tell people they aren’t being nice. You can be sued for anything that goes against faking a grin to rude people.

To summarize the problem, I-Hsien Weng discussed and made the following observations:

“As for insult, most countries do not criminalize it because the concept of insult is too unpredictable, and criminalization would overly interfere with freedom of speech. From my point of view, if we cannot clarify facts and value, libel and insult or the legal interests which criminal defamation law seeks to protect, we will be helpless when handling actual cases. Therefore, if we want to apply criminal defamation law constitutionally, the criminal code must be amended or re-interpreted. Otherwise, we should lay the offence of criminal defamation aside.”

Although insult and defamation are two separate things, it is important to realize that in Taiwan, have the ability to criminally prosecute and sue someone for an insult is not a good thing. As I-Hsien Weng states, most countries don’t criminalize the concept of an insult because it is an extremely vague area of the law and its intersection with freedom of speech makes it an issue that should be left as a civil matter.

The dangers of social media and being sued

A lot of people in Taiwan feel like they are invincible while on social media and make whatever comments they want. You know what? I think that’s totally fine. I just block those people and get on with my life.

However, swearing at someone Facebook or Twitter, or stating facts against someone could actually lead to you being sued and have to pay a fine under Chapter 27 of the Criminal Code. Yes, social media posts, comments, and messages can get you sued here.

Because the international community of “Westerners” is small in Taiwan, whatever you say won’t be too far from everyone else and you do leave yourself open to being sued.

You should also remember, if you do end up being sued, you could land yourself a criminal record which may have dire consequences on teaching in Taiwan, getting an APRC or working abroad elsewhere in the world.

How to avoid being sued

There is no easy way to say this but, bite your tongue. That’s as good as it gets I’m afraid. When it comes to people that bully, annoy or confront you, unless you have something else besides the facts and truth, you should probably bite your tongue and move along because that is essentially what the law here necessitates people to do instead of standing up for themselves.

Sure, there are parts of the law that allow you to defend yourself, but think about it, you are already in court by the time you get to tell your side of the story to a judge! Even then, something as complicated as a conversation between two people and an insult that might be interpreted differently between different people might forgo your only defense because insults aren’t always seen as being simply “nothing bad” or “the truth”, they can get you in serious trouble here.

Final thoughts

There is nothing wrong with punishing speech that drastically threatens someone’s livelihood or reputation, but only when it is factually incorrect. Anything outside of this, including public shaming, is nothing more than an aspect of Taiwanese law that needs to change.

Tomás Swinburne

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