| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 104 === The development of civil (tort) defamation law in Taiwan is different from the criminal defamation law, the former’s liability is becoming stricter than the latter. Because the purpose of criminal liability is to punish the man who makes a defamatory statement, it will depress the freedom of speech. In order to protect the democratic society, we shall not over constrain the freedom of speech. It will be proper to compensate the one who’s reputation is infringed rather than punish the one who makes a defamatory statements. Using the tort law to reconcile freedom of speech and right of reputation is a better choice.
The study suggests the structure of wrongfulness (Rechtswidrigkeit) in Taiwan is better than fault to reconcile freedom of speech and right of reputation. Because using the structure of “Handlungsunrecht” (Wrongfulness of behavior) in Wrongfulness to reconcile the objective factors to make a measurement of speech and reputation is better than using the subjective factors in fault, reconciling speech and reputation is all about the measurement of objective factors.And I suggest if someone is recognized wrongfulness, he/she may be recognized fault,either.
Civil defamation cases can be divided into two categories, which are “fact” and “opinion”, fact is verifiable and opinion is not. Statement of fact uses the rule of “truth denfense” from Taiwan criminal code Article 3 No.310 and “reasonable investigation” from Grand Justices’ Interpretation No. 509. If the statement is true, the defendant will be find no liability in defamation, but the statement is false, we use the reasonable investigation to examine the defendant’s behavior. This study presents a comprehensive survey of civil defamation cases in the Taiwan Supreme Court from 1996 to April 2015, and finds that the courts will adjust the standard of duty of care in highly public cases such as public figures and matters of public. To loose the standard of duty of care in highly public cases is important, it protects the freedom of speech, but the importance of protecting the public figure’s reputation is the same. So I suggest keeping the “duty of care” in a reasonable man standard, but loosing the “breach of duty” standard in highly public cases.
Statement of opinion in civil defamation cases usually refer to criminal code No. 311, but we don’t have to make the same interpretation in civil cases.Our courts in civil defamation law are developing their own standards. Such as the defendant and the other one talk the defamatory statements “in private”, the court will tend to hold the defendant no liability to the plaintiff.
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