The Taipei High Administrative Court rendered the 107-Su-56 Decision on September 27, 2018 (the “Decision”) in which it held that if an advertisement object may cause pollution in the environment as a result of disposal by the recipient or a third person after leaving the sender, the competent authority shall decide on the penalty by considering the actual circumstances.
In this case, an inspector of Defendant found a real estate advertising flyer containing Plaintiff’s telephone number (the “Flyer”) that was stuck in the crack under the doorplate. After taking a picture to preserve evidence and dialing the number on the Flyer, for verification, the inspector confirmed that this number was used by the Plaintiff for communications relating to the sale of the real estate. As a result, , the original disposition ordered a six-month suspension of services for the telephone number at issue. The Plaintiff filed an administrative appeal to challenge the decision but was rejected. Still dissatisfied, the Plaintiff then brought this administrative action.
Article 8, Paragraph 3 of the Telecommunications Act provides: “In case of any unsightly advertisement object set up, posted or painted at will, which contains, for the purposes of advertising and propaganda, one’s or another person’s telephone number or any other identification signs or numbers of telecommunications services, the competent authority for such advertisement may inform the telecommunications enterprise to stop the provision of the telecommunications services indicated in that advertisement.” In addition, Articles 36 and 43 of the Administrative Procedure Law also provide: “The Administrative agency shall investigate evidence ex officio without being constrained by any party’s claims and shall pay attention to matters both favorable and unfavorable to the parties,” and “in rendering an administrative disposition or carrying out other administrative acts, an administrative agency shall make a judgment of the truthfulness of the facts based on logical reasoning and the empirical doctrine after taking into consideration the statements presented and the conclusion reached upon the facts found and the evidence obtained, and shall then give the party a notice of its decision and reasons therefor.”
The Plaintiff denied putting the Flyer up as advertisement or sticking it under the subject doorplate. The Defendant’s picture show that the Flyer was not affixed on the doorplate but was instead inserted loosely below the mailbox under the doorplate, which means it is not without question whether such placement constituted pollution of the environment. Under normal circumstances, the distribution or delivery of an advertisement object may not always pollute the environment; the advertisement object may be subsequently transported or disposed of by the recipient or a third party in a way that pollutes the environment after the advertisement object has left the sender’s control. Even if the Defendant finds on its own that the Flyer’s placement constituted pollution, it must still find out who made the placement. Since Defendant inferred the Plaintiff had polluted the environment merely because the Plaintiff was the user of the telephone number on the Flyer and without determining the actual circumstances of how the advertisement object was circulated based on the empirical doctrine, it could hardly be concluded that the Defendant had paid equal attention on facts that are favorable to the Plaintiff. In addition, since the Defendant also violated the law for failure to determine facts according to the empirical doctrine, the original disposition was found to be unlawful.