Decriminalize Defamation, Now!

Decriminalize Defamation, Now!
China Times editorial (Taipei, Taiwan, ROC)
A Translation
July 25, 2008

President Ma has withdrawn the lawsuits he filed during the run-up to the presidential election, when the two camps filed a series of suits and countersuits against each other. Chen Shui-bian on the other hand, has decided to file a new lawsuit of his own. Chen had been summoned by the court to testify in the Lafayette Arms Procurement defamation lawsuit. He was physically assaulted as he approached the courthouse. Who knows the amount of legal resources squandered because politicians cannot refrain from endless recriminations? This is one of the biggest blind spots in the system. The justice system has never understood that defamation is a civil offense, and should not be considered a criminal offence. We have not been able to decriminalize defamation, the way other countries have, and restore it to the status of civil law. As a result Taiwan has paid a huge social cost. The issue requires serious soul-searching.

Several years ago some knowledgeable parties proposed decriminalizing defamation. They claimed that defining defamation as a criminal offense was unconstitutional, and petitioned the Grand Justices for a constitutional interpretation. The Grand Justices ruled that the law was not unconstitutional, and that the petitioners' reasoning was specious. The Grand Justices ruled that criminal penalties could help make up for inadequacies in civil compensation. Their ruling reflects an outdated mindset that regards criminal penalties as a form of vengeance. The Grand Justices ignored the fundamental difference between civil law and criminal law. Civil law is about compensation. Criminal law is about punishment. The forgot that criminal penalties contain a hidden danger. They allow state power to intrude into civil disputes, but do not allow the aggrieved parties to obtain genuine relief.

The Grand Justices do not consider laws defining defamation as a criminal offense unconstitutional. But that does not mean defamation cannot or should not be decriminalized. The reason is simple. Defamation harms an individual's reputation and legal interests. Civil law is perfectly capable of providing adequate relief. State intervention and criminal proceedings are unnecessary. They merely make conflict resolution even more difficult. Politicians resort to defamation lawsuits every day. One case gets filed on the heels of another. They yearn to see their opponents in prison. Meanwhile society must dance to their tune, unable to find a minute's peace. This is something everyone clearly sees.

Those who least ought to resort to criminal prosecution in defamation cases are precisely those most prone to use them -- public figures and politicians. Politicians, whether administrative officials, Members of Parliament, or political party leaders, wield immense power. On the one hand, their words and deeds should be subject to closer scrutiny than those of the general public. They also have an obligation to be more tolerant of criticism. On the other hand, they are more media savvy. They are far more adept than the general public at using media spin-control to defend themselves. Their ability to protect themselves by such means is often greater than any compensation they might derive after a long, drawn out court decision. If they resort to civil suits merely to demand monetary compensation, that is a legitimate exercise of their rights. But if they use criminal penalties to throw others in prison, that is a horse of a different color.

Take Chen Shui-bian for example. A number of years ago he was sued for defamation. He got a taste of what "political persecution" was like. But when he came to power, his administration did not champion the decriminalization of defamation. Those in power continued to charge member of the political opposition with the crime of defamation. Now that Chen is again in the opposition, he once again faces the threat of criminal penalties for defamation. If convicted, he will probably accuse the court of political persecution. The problem is not the fairness of the court's judgments. The problem is the legal system has provided politicians with a weapon they can use to exact revenge against their opponents, by threatening them with prison terms. It has also provided politicians who lose such lawsuits the opportunity to accuse the ruling authorities of exerting undue influence on the administration of justice, and to challenge the independence of the judiciary. If such lawsuits involved only civil litigation, there would be no allegations of political persecution. The problem would be far simpler. Society would be quieter and more peaceful.

Do not assume that civil compensation is incapable of redressing grievances, or that civil compensation cannot compensate for injury. After all, the courts can require those convicted to publish the judgement or an apology in the media. That is one way resolve the problem, via reconciliation. If the celing for compensation has been set too low, the laws may be amended, raising the limit. The courts can also stipulate punitive damages. Punitive damages and criminal penalties are different. Punitive damages are paid to the victim. Criminal penalties are paid into the state treasury. The victim is an individual. What right does the government have to pocket the fines?

There has already been more than one change in ruling parties. Society has made considerable progress. But politicians continue to file defamation lawsuits against each other. The government has limited legal resources. The damage done to the justice system and the government's credibility is incalculable. The political stage is a game of musical chairs. When people are in office they may be plaintiffs. But when people are out of office they may well end up as defendants. Round and round, back and forth. Politicians have turned the nation's system of criminal law into a weapon against their enemies. Hasn't society suffered enough?

It is high time defamation was decriminalized and redefined as a tort law issue. President Ma has withdrawn his lawsuit. Will he follow through and urge the Ministry of Justice and the Legislative Yuan to promote the decriminalization of defamation?

中時電子報
中國時報 　2008.07.25
推動誹謗除罪化，此其時矣
中時社論

　馬總統撤回了選舉期間因為兩陣營相互攻詰而提告的案件；陳水扁則於卸任後受法院傳喚出庭而遭人襲擊，決定再興訴訟。他是因公開指述拉法葉案弊端而吃上了誹謗官司。為了政治人物無止無休的唇槍舌劍，法院不知賠上多少司法資源，這其中最大的制度盲點，在於現行法制始終不能認清誹謗行為的本質是民事侵權行為，不該被認為是刑事犯罪。結果至今不能如其它國家一樣除罪化、回歸民事審理，讓台灣付出了鉅大的社會成本，這是在此要認真檢討的課題。

　誹謗罪除罪化，數年前曾有識者鼓吹其事。一度挑戰誹謗罪刑事立法為違憲而聲請大法官解釋，大法官則不以之為違憲，所持的理由則是似是而非。大法官認為刑事制裁可以彌補民事賠償之所窮。這可謂是將刑事制裁視做報復的思維依舊揮之不去，大法官不但忽略了民事是賠償、刑事是懲罰的根本差異，而且忘記了刑事懲罰藏著國家公權力介入民事糾紛的隱患，卻並不能讓受害的當事人獲得真正的實質救濟。

　即使大法官不以誹謗罪是違憲立法，也不代表誹謗不能或不該除罪。道理很簡單，誹謗是傷害個人名譽法益的行為，可由民事訴訟提供足夠的救濟，不需要國家公權力用刑事訴訟的方式介入，徒增更多的怨懟難以化解。政治人物以誹謗罪名興訟，無日無之，一波未平，一波又起，必欲對手身陷囹圄，社會受其牽引舞弄，難有寧時，已經不需要更多的證明。

　最最不該動用刑事制裁追訴誹謗刑責的，恰恰就是最愛動用誹謗刑事訴訟的公眾領袖與政治人物。政治人物不管是行政首長、國會議員或是政黨領袖，其實都是權傾一時的實力人物。一方面他們的所言所行，都該比一般平民受到更多的公評，也就應該更有容忍的責任，另一方面他們動見觀瞻，遠比一般平民更容易藉由媒體舞台發聲自辯自衛，所能得到的防護效果有時更甚於曠日費時的法院判決。如果只是訴諸民事法院，要求金錢賠償，猶屬正當權利之行使；一旦動用刑事訴訟欲陷他人於牢獄之災，那就是另一種評價了。

　以陳水扁為例，他當年因為誹謗罪吃了刑事官司，嘗到了「政治迫害」的滋味。可是當他上台執政，政府並未大力推動誹謗除罪化，在野者繼續被當政者用誹謗罪訴追；今天他又下野了，再度面臨誹謗罪的威脅，一旦成罪，恐怕又要指責法院政治迫害。問題可能不在法院依法判決公不公正，而是在於法律制度為政治人物的恩怨情仇，提供了藉用手中權力，加施敵手牢獄威脅的機會；也提供了敗訴的政治人物指責當權者影響司法、挑戰司法獨立的溫床。如果只用民事訴訟解決，就不會有政治監獄迫害的指控，問題單純得多，社會也會安靜平和許多。

　不要以為民事救濟的賠償有時難以濟事。賠償請求不足以平復傷害。還可以用媒體刊登判決書甚或是以和解道歉的方式解決問題。賠償法定金額過低，可以修法明訂提升其額度，明白規定容許請求懲罰性賠償也無不可。懲罰性賠償仍與刑事制裁不同。懲罰性賠償是由受害人取得，刑事罰金則是由國庫受付。試問，受害者為個人，國家拿走罰金，有什麼道理可言？

　政黨輪替，不只一回了。社會進步了許多，可是政治人物利用誹謗刑事官司冤冤相報的場景與業障，始終揮之不去，國家訴訟資源事小，司法乃至政府公信力的損害事大。上台下台如走馬燈的政治人物，上台時告人或看人被告，下台時成為被告，上上下下，告來告去，將國家刑事執法公器演成了互相傷害的工具，社會受害還不夠深嗎？

　誹謗，到了還其本質為民事侵權行為，刑事上除罪化的時候了！撤回告訴的馬總統，要不要功德做到底，建議法務部與立法院，推動誹謗除罪化的善舉？