The principle of actual malice also applies to the offense of affecting election by spreading rumors(Taiwan)

Emily Chueh

The Supreme Court rendered the 106-Tai-Shang-96 Criminal Decision of February 9, 2017 (hereinafter, the “Decision”), holding that the principle of actual malice applies to the offense of affecting election by spreading rumors.

According to the facts underlying this Decision, the Defendant broadcast the following statement when he organized a press conference with a theme of combating election bribery for Ching-chun Chiu, a candidate for the election of Hsinchu County Magistrate: “According to our observation of elections in the entire Hsinchu County, I cannot help being intrigued. If my dear friends are interested, you may run this kind of statistics on the election campaigns of our opponent Mr. Yung-chin Cheng and his family, those who have conducted election campaigns, including his son and brother. What I am trying to convey is that if you adopt an opposite perspective, I would like to ask our voters if there is any of them who has never accepted money from them. I am really curious about this.” He was found in the original decision to have committed the offense of affecting election by spreading rumors in violation of Article 104 of the Election and Recall Law. Dissatisfied, the Defendant appealed.

According to the Decision, if an actor can substantiate reasonable grounds for his belief in the truth of his statement, this does not constitute deliberate libel and the actor assumes no criminal liability for libel. To wit, there is no need to substantiate that the statement is true. Under Article 104 of the Election and Recall Law, the offense of spreading “rumors or anything untrue” is constituted by the communication and spreading of specific fabricated facts. Therefore, the above reasoning also applies.

It was further pointed out that since the Defendant had substantiated that his basis was information passed on from witnesses or news reports, there were adequate reasons for him to believe in the truth of his statement. The original decision directly concluded that the Defendant’s basis was hearsay or was not verified, and that his inference could not be relied on to form a belief for his statement. This seemed to require the Defendant to substantiate the truth of his statement and did not meet the above principle of actual malice. Since the original decision was flawed for insufficiency of grounds, it was reversed and remanded.