A categorical ban against advertising materials without inquiring into their impact on the cityscape is a violation of the principle of proportionality(Taiwan)

Ankwei Chen

The Supreme Administrative Court rendered the 106-Pan-170 Decision on April 7, 2017 (the “Decision”) in which it held that a categorical ban on advertisement materials without inquiring into their impact on the cityscape violates the principle of proportionality.

A group of inspectors for appellee Ilan County Government discovered hanging on a construction wall off the Toucheng exit a large size canvas with the text “2014 New Mayor with New Vision for Keelung City as City of Ocean, Arts and Culture for 2014: Ming-po Wu Wu of the People’s First Party for the Mayor of Keelung City in 2014” (the “Election Canvas”) as put up by the appellant. As a result, the Appellee imposed a fine of NT$1,200 and ordered the removal of the Election Canvas by the violator in three days on grounds that the evidence clearly shows the act of environmental pollution by hanging advertisement material on a wall within an area designated by Ilan County Government. The appellant then brought an administrative action to contest this disposition.

According to the Decision, the posting of advertising material is an expression of the fundamental rights such as free speech and the general freedom to act that are protected under the Constitution. Therefore, the advertising material is not an environmental pollutant per se; if an item is to be deemed an environmental pollutant so that the installation of such item is regulated for the sake of keeping a clean cityscape and improve environmental s, it is certainly necessary to comprehensively consider the necessity and appropriateness restricting the freedom of speech or other fundamental rights protected under the Constitution. To wit, the principle of proportionality set forth in Judicial Interpretation No. 734 should be satisfied.

The Ilan County Government’s categorical prohibition against the hanging of any advertising material on building walls in its designated areas, regardless of the content, format, texture, specifications of the advertisement material, and the location of the wall, as well as whether such advertising material makes any difference in terms of the impact on cityscape, violated the principle of minimum harm. In addition, there is no reasonable connection between the prohibition of putting up advertisements in freeway exits and the furtherance of public interest in transportation safety or the legislative objective of improving environmental sanitation and maintaining national health under the Waste Disposal Law. As such, this practice has exceeding the mandate of the enabling law and violated the principle of legal reservation under Article 23 of the Constitution. Therefore, the original disposition, as well as the decision in the administrative appeal to uphold the original disposition, should both be vacated.