List of Relevant Laws Impacting Free Speech (Taiwan) (2015-2022)
Legislation
Incitement
1. Criminal Punishment
§153 Criminal Code (2019.12.25 revised)
Incitement speech carries criminal punishment, including fines and imprisonment as penalties. In 2019, the law underwent revision, leading to the implementation of stricter fines. Additionally, Taiwan has specific regulations pertaining to incitement in electoral speech, outlined in the Civil Servants Election and Recall Act and the Presidential and Vice Presidential Election and Recall Act.
Defamation
1. Criminal Punishment
§310 Criminal Code (2019.12.25 revised)
- 310 Criminal Code serves as the fundamental regulation for defamation, prescribing fines and imprisonment as penalties. It also includes the “defense of truth” as a justification to avoid punishment. In 2019, the law underwent revision, imposing stricter fines. Furthermore, Taiwan has specific regulations concerning defamation in electoral speech, which can be found in the Civil Servants Election and Recall Act and the Presidential and Vice Presidential Election and Recall Act.
Publicly Insult
1. Criminal Punishment
§309 Criminal Code (2019.12.25 revised)
Publicly insulting someone is subject to criminal punishment, typically involving fines and short-term imprisonment as penalties. In 2019, the law underwent revision, leading to the implementation of stricter fines as punishment.
Political Speech
1. Criminal Punishment
§140 Criminal Code (Revised in 2019.12.25 and 2022.01.12)
Offenses related to insulting public officials and public offices lead to criminal punishment involving fines and imprisonment. In both 2019 and 2022, the law underwent revisions that resulted in imposing stricter punishment for these two types of penalties.
2. Transparency of Speech on electoral speech
§51 Civil Servants Election And Recall Act (2016.12.14 revised)
An obligation to enforce real-name requirements on political advertisements.
Governmental Speech
§5 Government Servant Service Act (2022.06.22 revised)
A regulation prohibits all civil servants from delivering speeches about their duties or the business responsibilities of the agency they serve unless they have obtained prior authorization from their representative agencies.
Obscene Speech
1. Criminal Punishment
§235 Criminal Code (2019.12.25 revised)
Distributing obscene speech is subject to criminal punishment, involving fines and imprisonment. In 2019, the law underwent revision, resulting in the implementation of stricter fines as punishment.
Discriminative Speech
1. Administrative Penalty
§§38, 78 Mental Health Act (2022.12.14 revised, go into effect after 2 years)
A regulation is in place to combat reports or publications that contain discriminatory speech or false information about mental illness. This regulation is enforced through administrative penalties. Furthermore, the law prohibits any speech that attributes the occurrence of a legal incident to the mental illness of an individual before a judgment has been made.
False Information
1. Criminal Punishment
§251 Criminal Code (2020.1.15 revised)
False information distributed to manipulate the trading price of essential goods is subject to criminal punishment, which typically involves fines and imprisonment. In 2020, the law underwent revision, resulting in stricter punishment for individuals who employ communication tools as instruments of crime. Additionally, for specific regions or cases involving false information, other similar regulations utilize criminal or administrative penalties as forms of punishment.
§319-4 Criminal Code (2023.02.08 enacted)
The production of deep-fake images, particularly those that involve creating false sexual images of individuals, is subject to criminal punishment. Those found guilty may face fines and imprisonment as part of their sentence.
National Security
§3 Anti-infiltration Act (2020.01.15 enacted)
The regulation defines infiltration actions and imposes criminal punishment on individuals who engage in political donation or lobbying activities under infiltration sources’ instructions or financial support.
Regulation of Press and Social Media
2022 Draft of Digital Communications Commission Service Act (DCCSA) and Digital Intermediary Service Act (DISA)
2023 Amendment of All-out Defense Mobilization Readiness Act: Draft Art.15, 33 (ADMRA)
The draft of DCCSA and DISA is written to refer to the Digital Services Act package (DSA) enacted in the EU, the contents including regulation on intermediary service. As for the draft of ADMRA, the law authorized the government to investigate and reorganize social media.
Non-Legislative Developments
Fake information during the local election and referendum in 2018 (NCC)
National Communications Commission rejects license renewal for CTi News under §§27 and 46 Satellite Broadcasting Act in 2020.11.18
Due to repeated instances of neglecting fact-checking and spreading false information during the local election period 2018, the National Communications Commission (NCC) rejected the license renewal for CTi News in 2020.
National Security and Freedom of Press (Ministry of Culture and Ministry of Digital Affairs)
The Ministry of Culture asked the publisher to remove a children’s book from China based on §37 Act Governing Relations between the People of the Taiwan Area and the Mainland Area in 2020
Under the prior restraint system on publications from China, the Ministry of Culture implemented a ban on a specific picture book from China. This action was taken due to criticism of the book’s content for being propagandistic.
Ministry of Digital Development banning civil servants and official agencies from downloading and using part of China apps according to Principles of All Agencies Restricting the Use of Products that Endanger National Information and Communication Security in 2022
The Ministry of Digital Development has announced that TikTok and Xiaohongshu are “products that pose a threat to national information and communication security.” As a result, these apps have been prohibited within official agencies.
Administrative Control during COVID-19 due to broadly authorized Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens (Ministry of Health and Welfare)
Social Gathering Ban and Criminal Punishment of COVID-related disinformation
In 2020, the Legislative Yuan passed a special law pertaining to COVID-19, which included Article 7 that granted extensive authority to the Central Epidemic Command Center (CECC) to enforce pandemic control policies. During the Level-3 Alert period from May 19, 2022, to July 27, 2022, the CECC implemented a ban on outdoor gatherings of more than ten people and imposed criminal penalties for disseminating false information related to the epidemic.
Enforcement
Constitutional Decisions (Judicial Yuan Interpretation and Constitutional Court Judgement)
Freedom of Thought－TCC Judgment 111-Hsien-Pan-2 (2022) Case on the Constitutionality of Compelled Apologies (II) (unconstitutional)
The Constitutional Court reversed its previous ruling, J.Y Interpretation No. 656, and declared that courts should not require compelled apologies as a form of compensation for damages to the right of reputation.
Freedom of Expression－J.Y Interpretation No.806 on Prior Restraint on Street Artist (partially unconstitutional)
The Constitutional Court applied the two-track theory, derived from the US Supreme Court, to validate the constitutionality of restrictions on the performance locations of street artists. However, it simultaneously declared the regulation of prior restraint on speech content unconstitutional.
Prior Restraint－J.Y Interpretation No.756 on Prisoners’ Freedom of Secrecy of Correspondence and Freedom of Expression Case (unconstitutional)
The Constitutional Court ruled that the regulation granting prisons the authority to review the content and impose prior restraint on prisoners’ submission of essays is unconstitutional.
Freedom of Assembly－J.Y Interpretation No.734 on Recognizing placement of advertisements as an act of environmental pollution (unconstitutional)
The Constitutional Court declared that an anti-pollution regulation, which incidentally restricted freedom of speech, is unconstitutional.
Commercial Speech－J.Y Interpretation No.744 on Prior Restraint on Commercial Speech Case (unconstitutional)
The Constitutional Court employed the “direct, immediate, and irreparable harms test” as the standard for scrutinizing regulations involving prior restraint. Consequently, the Court declared the regulation imposing prior restraint on commercial speech unconstitutional.
No.794 on Mandatory Disclosure of Sponsor of Tobacco Industry (constitutional)
The Constitutional Court ruled that the regulation prohibiting tobacco companies from revealing their names when acting as sponsors of public activities is constitutional.
Judgment done by Courts
Cases of Occupying Legislative Yuan and Administrative Yuan during Sunflower Movement in 2014.3
In 2014, students occupied the Legislative Yuan and Administrative Yuan in protest against an economic agreement with China without proper process. Regarding the criminal accusations related to the Legislative Yuan occupation, the defendants were found not guilty of incitement and offenses of obstructing an officer in discharging their duties. In the Administrative Yuan case, the courts of first and second instance issued partial guilty verdicts, but in the third, the protesters were ultimately deemed not guilty.
Case of Hydis Korean Workers been deported and got refusal to enter Taiwan while they came to protest in 2015.6
The Korean workers who came to Taiwan for the purpose of protesting were deported by the National Immigration Agency. The reason for their deportation was that their activities were deemed inconsistent with the purpose stated in their application for a visit or residence.
Case of Indigenous Traditional Territory protest since 2017.2.23
During a series of protests against the current traditional territory system, an indigenous protester was fined based on the Taipei City Park Management Ordinance. However, the fine was initially revoked by the court of first instance due to the protection of symbolic speech. Subsequently, the higher court reversed the decision and remanded the case, ultimately upholding the fine.