Taiwan Constitutional Court Holds Court-Ordered Public Apologies Unconstitutional

On February 25, 2022, Taiwan's Constitutional Court (憲法法庭) issued a decision holding that a court order for a defendant in a defamation case to publish an apology in the print media is not a "proper measure" or remedy pursuant to Article 195 Paragraph 1 of the Civil Code (民法).
This decision (111 Year Hsien-Pan-Tzi No. 2 Judgment 111年度憲判字第2號判決) reversed the 2009 holding in Judicial Yuan Shi-Tzi No. 656 Interpretation (司法院釋字第656號解釋) that such apologies were constitutional to the extent that the apology did not humiliate or degrade the human dignity of the person making the apology.
Elaborating its rationale, the Constitutional Court explained that Article 11 of the Constitution protects freedom of speech. This freedom includes not only the right of expression, but also the right not to speak, which are imperative to protect the integrity of human dignity and the related right to free development of personality.  Article 195 Paragraph 1 of the Civil Code prescribes that, if a person has wrongfully damaged   the reputation of another, or caused severe injury another's personality, the injured person may claim reasonable monetary compensation even if such injury is not a purely pecuniary loss. Furthermore, in the case of damage to reputation, the injured person may also petition the Court to take "proper measures" to rehabilitate the plaintiff's reputation as an additional remedy.
The legislative intent of Article 195 Paragraph 1 of the Civil Code has language asserting that proper rehabilitative measures include a court order compelling the person who caused the injury to apologize by means of a statement published in a general circulation newspaper. This view was affirmed by and adopted in many relevant judgments issued by the civil courts over the years. Although a court-ordered newspaper apology can help rehabilitate the reputation of a person harmed by defamation, an apology of this nature also seriously infringes the defamer's freedom of speech in general and their right not to speak in particular.
Concerned that court-ordered newspaper apologies involve interference with high-value speech (and also freedom of press in cases where the press is ordered to apologize in print), the Constitutional Court adopted the "strict scrutiny" standard of review to examine whether compulsory public apology under Article 195 Paragraph 1 of the Civil Code is unconstitutional or not. According to this standard of review, the legislative purpose for a statutory provision must be based on a compelling public interest. Moreover, the means for achieving that the purpose must be necessary and cause the least possible harm to the rights of those impacted by the statutory provision.
In its decision, the Constitutional Court considers first that not all defamation cases involve compelling public interests.  Some are minor private disputes irrelevant to the public interest.  Second, the legislative purpose of the said "proper measures for rehabilitation of reputation" is not to punish the person who caused the injury or to cause self- humiliation, but rather is to make the injured person whole.  It follows that proper measures can be implemented by means of remedies such as monetary compensation and ordering that the full text or a portion of the judgment be published in the newspapers at expense of the person who caused the injury because these methods of achieving the purpose of rehabilitating reputation burden freedom of speech less than coercive court-ordered apologies.
In the case of individuals ordered to apologize in the media, the Court further held that such apologies risk infringing on the individual's freedom of thought and of conscience in cases where the person subject to the court-ordered apology is unwilling to apologize in public. Such an outcome is inconsistent with Judicial Yuan Shi-Tzi No. 567 Interpretation (司法院釋字第567號解釋), which held that the state is not permitted in any circumstances to force people to speak in a way that contradicts their inner thoughts or values.   
As a consequence, after weighing the right to reputation of the injured person and the right to freedom of speech of the person who caused the injury, the Constitutional Court concluded that a court order compelling any person to post an apology in the print media is not a "proper measure" prescribed in Article 195 Paragraph 1 of the Civil Code (民法) and modified the conclusions in Judicial Yuan Shi-Tzi No. 656 Interpretation (司法院釋字第656號解釋) to the extent that they are inconsistent with the instant decision by the Constitutional Court.
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