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Asia Research Centre
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Professor Stephan Feuchtwang
s.feuchtwang@lse.ac.uk
Dr Fang-Long Shih
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John McNeil Scott
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Punishment of Defamation

With Ms I-Hsien Weng (National Taiwan University)

Series: London Taiwan Seminar|, special series on Law and Society in Taiwan|

Date: Tuesday 6 December 2011 10am-12 noon

Venue:  Seligman Library (Room OLD 6.05), London School of Economics (LSE)

Chair: Dr Fang-Long Shih (LSE Taiwan Research Programme)

Discussants: Professor Stephan Feuchtwang (LSE Anthropology); Dr Thomas Poole (LSE Department of Law); Reverend John McNeil Scott (LSE Taiwan Research Programme)

Abstract

Freedom of speech is without doubt an indispensable right in a democratic society. However, society also attributes 'reputation' to individuals through evaluation, and when freedom of speech threatens another's reputation, a tension occurs between fundamental rights. Not only Taiwan, but most countries encounter questions around which right enjoys priority when the two collide, or under what circumstances certain speech should be punished. Therefore, both theoretical interpretation and practical application of law must be careful: on the one hand, it could cause a chilling effect on free speech, or on the other give inadequate protection to reputation.

Taiwan's practice has been to take a position which has broadened the protection of freedom of speech as much as possible. Only when libel or insult damages personal reputation and privacy or public interests can such speech be reasonably constrained by laws. Taiwan's Criminal Code separates defamation into 'libel' and 'insult in public'. Although scholars and practitioners have both endeavoured to differentiate the two either by a fact/value approach or an exterior/interior reputation approach, the line between 'libellous statements' and 'insulting statements' is still vague and unpredictable when dealing with actual cases. Besides, it is difficult for prosecutors to prove that a 'fact does not exist' or to demonstrate that speech constitutes 'judgment without factual basis'. There is also a cultural problem in Taiwan, in that politicians, entertainers, and other public figures try to maintain public exposure through news, which gives the public to a wrong impression that crime of defamation can be easily established.

In the USA, libel cases are becoming fewer, and most US states have abandoned criminal punishments when dealing with them. Instead, US law tends to use torts. As for insult, most countries do not criminalize it because the concept of insult is too unpredictable, and criminalization would overly interfere with freedom of speech. From my point of view, if we cannot clarify facts and value, libel and insult or the legal interests which criminal defamation law seeks to protect, we will be helpless when handling actual cases. Therefore, if we want to apply criminal defamation law constitutionally, the criminal code must be amended or re-interpreted. Otherwise, we should lay the offence of criminal defamation aside.

About the speaker

Ms I-Hsien Weng completed her Bachelor of Laws degree at National Taiwan University in 2010, and she qualified as an attorney in the same year. She is currently studying for her Master of Laws degree in Public Law at NTU, where she is a research assistant for Professor Tzung-Jen Tsai and undertaking research on a National Science Council project entitled 'Constitutional Protection of Personality Rights and Integrity in the Information Technology Age'. She is also the teaching assistant for the NTU courses 'Constitution' and 'Human Rights and Justice'.

Alongside her academic work, Ms Weng worked as a student intern for Attorneys-at-Law Lee and Li at the beginning of 2011, and received recognition for her efficiency and responsibility. Due to her fluency in English, Ms Weng was recommended by her instructor attorney to be a member of staff at the Presidents of Law Associations in Asia Conference (POLA) in 2011, where she was assigned as the interpreter for the President of the Taiwan Bar Association.

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