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’s so weak that you can be sued for any comment that could be perceived as unfavorable.
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 communicate to the public is factually correct, you could face a short-term prison sentence, or pay a fine
- 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:
- For self-defense, self-justification, or for the protection of legal interest
- If the report that defames or causes public insult is made by a public official in their official capacity
- It is a fair comment on a fact subject to public criticism
- It is a fair comment on the proceedings of a national or local assembly, court, or a public meeting
Interestingly, you can be sued if you insult a deceased person by their family and descendants. In other words, if you defame Chiang Kai-shek, his family members could 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 for the law being so weak is because it 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 was changed to a criminal one. What they equate is that if someone is rich, they can pay out all the civil suits they want and still continue to insult and defame others. The decision to change defamation from a civil matter to a criminal one was made to prevent wealthy citizens from abusing others.
However, this is problematic for many reasons. The not the reality, and people that defend themselves by showing how others are doing disreputable things are getting criminal records. People that say “you’re stupid” or make rude gestures are being fined and receiving criminal records.
Defamation and Freedom of Speech
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 for openly discussing factual information.
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.”
As I-Hsien Weng states, most countries don’t criminalize insults because they’re 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’re invincible while on social media and make whatever comments they want.
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.
Because the international community of westerners is small in Taiwan, whatever you communicate publicly, unfortunately, will probably be picked up by the community and you do leave yourself open to being sued.
If you do end up being sued, you could land yourself a criminal record which may have consequences on your ability to teach 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 remain civil and move along because that is essentially what the law here necessitates people to do.
There are parts of the law that allow you to defend yourself, but by the time you get to tell your side of the story, you’ll already be facing a judge or an arbitrator.
Again, insults can be interpreted differently between people, and what you might not see as an insulting, may be seen in the eyes of a judge to be a serious violation of the criminal code.
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.