| Summary: | 碩士 === 東吳大學 === 法律學系 === 105 === The freedom of speech, the fundamental right guaranteed by the Article 11 of our nation’s Constitution, requires that the government should grant the maximum degree of protection for free speech. It means only under the purview of the constitutional protection, people would be able to fully realize and express themselves, pursue the truth, and take part in all manners of political and social activities. However, in light of protecting other fundamental rights such as personal reputation, privacy and public interests as well, the freedom of speech would not be an absolute right, it has to be subjected under reasonable statutory restraints. The disputes of such conflicts would be complex. Hence, this study would take the slice of the disputes to focus on the issue of that “when we face the conflict between the freedom of speech and the right of personal reputation, how to resolve it in the civil litigation.”
To discuss the conflict between freedom of speech and personal reputation in Taiwan, the content of No. 509 J. Y. Interpretation should be clarified. In this interpretation, it held the Article 310, the first sentence of Paragraph 3 of the Criminal Code provided that “to the defamatory statement, an accused must not be guilty if the accused is able to prove the statement is true.” This provision prescribes the elements of defense; that is, a perpetrator who originated or circulated a defamatory statement may not be guilty under criminal defamation, if the statement is in the fact. Nevertheless, it does not imply that the accused must carry the burden of proof that the defamatory statement is truthful. In the case where the accused has no way of showing the truthfulness of the statement, the court must determine the accused is not guilty when the evidence proffered for the court’s review shows that the accused has reasonable grounds to believe that the statement was true at the moment of dissemination.
In the practice of Taiwan, the J. Y. Interpretation No. 509 is not only applied for criminal cases of defamation, but also applied for the civil cases. However, the explanation of way between the civil cases and criminal cases is not the same. According to the past judgments of the Taiwan Supreme Court, we could find the court chooses different principles to adopt in the criminal cases and civil cases. It tends to hold the “reasonable investigation” principle in the civil cases, and hold the “actual malice” principle in the criminal cases. Hence, the two kinds of dispositions of the court to deal with the lawsuits of defamation initiates a further question that “what’s the difference of the proven degree between the civil and criminal lawsuits?” The answer of the question may imply the court’s point in the conflict of freedom of speech and personal reputation. Therefore, this question would also be the main issue of the study. And, based on the above discussion, the general organization and initial results of the study are as follows:
First, the study introduced the meanings in the right of reputation and the freedom of speech, and explained how to solve the problems according to the Constitution and its related interpretations when face the conflicts among the constitutional rights.
Second, the study turned to discuss the relevant rules of the Civil Code. Since the defamation is regarded as a kind of torts, the injured party is allowed to claim damages for the defamation based on the Article 184, Paragraph 1 of the Civil Code in Taiwan. To clarify the application of the Article 184, Paragraph 1 deeply, the chapter 3 and 4 of the study focused on the explanation of the Article 184 with the three-tier structure from the aspect of Germany’s law.
Then, the study entered into the discussion of the burden of proof in the civil litigations. In this part, the study focused on the foreign laws to compare with the rule “actual malice” of U.S. and the “Reynolds privilege” of U.K. Hence, based on such rules, the study observed the expansion of Taiwan’s judicial opinions, and found out that our judicial opinions preferred to adopt a loose standard of proving when they faced the cases concerning the public figures or the public affairs. The study also noted that, in the past, our courts expanded their own standards to deal with the related cases which were different from the U.S. or U.K. At last, based on Taiwan’s judicial opinions, the study tried to serve some opinions of the proving burden of defamation, and hope such opinions can harmonize the conflict between the right of reputation and the freedom of speech in the civil litigations.
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