April 2022
Elizabeth Pai and Julian Lai
Article 195, Paragraph 1 of the Civil Code provides: “If a person has wrongfully infringed the …. reputation… of another, the injured person may claim a reasonable compensation in an appropriate amount even if such damage is not a purely pecuniary loss. If it is a reputation that has been infringed, the injured person may also request proper measures to restore the reputation.” The Constitutional Court of Taiwan rendered the 111-Xian-Pan-2 Decision of February 25, 2022, holding that the “proper measures to restore the reputation” in the above-mentioned provision should not include the scenario where “the court renders a judgment to compel the wrongdoer to apologize.” Therefore, after this Constitutional Court decision is rendered, a victim whose right of reputation has been infringed by another person may not restore the reputation by requesting the court to compel an apology by ordering the “wrongdoer to publicly apologize.” This Constitutional Court decision reverses the position that “a decision that compels the wrongdoer to apologize is constitutional if it does not involve impairment to the human dignity of the wrongdoer such as self-humiliation” in Judicial Interpretation No. 656 for the following main reasons:
1. The court’s decision to order the wrongdoer to publicly apologize directly interferes with the people’s autonomy to decide “whether and how to express their opinions or value positions” and is an interference with the content of high-value speech. In addition, when the wrongdoer is a member of the news media, a judgment ordering the wrongdoer to publicly apologize may also interfere with the freedom of the press, thereby affecting the important functions of the news media, such as to facilitate public deliberation for maintaining sound democracy. When the wrongdoer is a natural person, it may further interfere with the freedom of thought in the individual’s inner spiritual activities and value decisions, such as conscience and philosophy.
2. The circumstances of cases where the right of reputation is infringed vary, and there are also cases where the dispute is only between private parties and does not involve third parties or public interests. Under such circumstances, it would go against the principle of proportionality if “the court orders the wrongdoer to make a public apology” as a means to restore the reputation. In addition, for the victim, it is doubtful whether the “apology not made out of the victim’s true intention” has the positive function of truly repairing the damage.
3. Therefore, if “the court compels the wrongdoer (who infringes another person’s reputation) to publicly apologize to the victim through a court judgment” as the “proper measures for restoring the reputation” as stipulated in the latter part of Article 195, Paragraph 1 of the Civil Code, regardless of whether the wrongdoer is a natural person or a juristic person, even if this does not involve the wrongdoer’s self-humiliation and other circumstances that undermine human dignity, it is still contrary to the constitutional intent of protecting the people’s freedom of speech.
After the Constitutional Court declared that “a court decision rendered to compel the wrongdoer to apologize publicly ” is unconstitutional through its 111-Xian-Pan-2 Decision, if an enterprise or an individual whose reputation is infringed by another person in the future, in addition to claiming monetary compensation (e.g., pecuniary damage caused by the infringement of goodwill), if there is still a need to further make the successful judgment widely known, although the victim cannot request the court to compel the wrongdoer to apologize anymore, still the victim may ask the court to compel the wrongdoer to publish a “clarification statement” or “notice of the victim’s victory” in a public place such as a newspaper or the homepage of the wrongdoer’s website for a period of time, or even request the court to compel the wrongdoer to “disclose all or part of the judgment” in order to restore the victim’s reputation.