Press Enter to Center block

Intellectual Property and Commercial Court


2011 Min Zhu Shang Zi No. 5

Decision No. 2011 Min Zhu Shang Zi No. 5
Date July 12, 2012
Decision Highlight

I. Balanced Protection of Freedom of Speech, Academic Freedom and Right to Reputation:

1. The people’s freedom of speech, lecture, authorship and publication is protected by Article 11 stipulated in the Constitution. In which, the freedom of speech is a fundamental right of the people, and the State shall provide the maximum protection thereto, so as to ensure its functions of self-actualization, thought-communications, truth-seeking and overseeing all kinds of political or social activities to be duly performed. However, in accordance with the Judicial Yuan Interpretation No. 509, the laws are not prohibited from adopting reasonable regulation upon the means of dissemination based on the freedom of speech (such as the regulation stipulated in Article 310 of the Criminal Code), in order to protect individual’s reputation, privacy and public interest simultaneously.

2. The provision to the freedom of lecture according to Article 11 of the Constitution is an institutional protection to the academic freedom, and shall include the freedoms of research, teaching and learning to the aspect of an undergraduate education. Such institutional protection to the academic freedom shall be secured by the organization of the university and other structural administration, that is, the system of university autonomy shall be admitted and the activities such as research, teaching and learning shall be safeguarded from undue interferences, such that the university is entitled to the power of autonomy upon organizational governance, while the individuals are entitled to the academic freedom (referring to the Judicial Yuan Interpretation No. 380 and the reasoning thereof). Accordingly, the freedoms of teaching and research in the universities as well as the freedom of learning associated with the students are all protected by the Constitution, and are entitled to the power of autonomy within the scope stipulated in the laws (referring to the Judicial Yuan Interpretation No. 563). It is therefore apparent in light of the reasoning of the Judicial Yuan Interpretation No. 684 that in order to prevent the academic freedom from being unduly interfered by the State, not only the administrative control shall receive certain restrictions (referring to the Judicial Yuan Interpretation No. 380), but also the legislative branch can only regulate the affairs associated to the universities under a reasonable ambit (referring to the Judicial Yuan Interpretations No. 563 and No. 626).

3. Academic research is a process of development upon perception and truth seeking, and the academic freedom is a subjective public right with a nature of a right of defense for the people to proceed with self-actualization and to resist against the supreme authoritative invasion by the State. In which the freedom of research is a freedom to voluntarily determine the research object and the research approach, which includes the process of research, evaluation of results, whether to publish or not, data collection and so on. The protection to the freedom of research covers upon all the research activities associated with self-responsibility, such as the selection of issues and approaches, data collection and preparation, exploration of the research objectives, acquirement and utilization of publications, evaluation and publication of the research results and so on, shall all be refrained from the undue supervision and interference by the authority of the State.

4. The right to reputation is to maintain individual’s independence as well as the integrity of the personality; it is therefore essential for the implementation of human dignity and is protected by Article 22 of the Constitution (referring to the Judicial Yuan Interpretations No. 399, No. 486, No. 587, No. 603 and the reasoning of No. 656). However, the freedom of speech, the freedom of lecture (academic freedom) and the right to reputation are all the fundamental human rights protected by the Constitution, the court shall therefore carefully attain to its conclusion by weighing the varied circumstances of the intrusions to each of the fundamental human rights. Freedom of speech protects both active freedom to indicate one’s intention and passive freedom to conceal one’s intention, and the content and approach for conducting academic research are to be protected by the academic freedom, it is therefore irrelevant as to the quality or accuracy associated with the content of the research. Nevertheless, if there is any invasion to other’s right to reputation beyond the scope permitted under the laws while conducting academic research or presenting personal speech, both the freedom of speech and the academic freedom thereof are no longer needed to be protected.

II. The academic freedom is firstly rendered in the freedom of research and the freedom of teaching, and the scope of protection shall then be extended to other important academic activities, such as the formation of research motivation, the submission of the project, the combination of the research personnel, the collection and distribution of the budget, the publication of the research results and so on, which are related to explore knowledge and to find truth, and these activities shall not only be protected but also be entitled to share the provision of the social resource. In addition to the freedom of research, the freedoms of the matters belong to the categories of teaching and learning, such as class coordination, subject construction, lecture context, scholastic ability evaluation, examination rules, the freedom to select applicable department and program by the students, the autonomy of students and so on, are all within the scope of protection (referring to the reasoning of the Judicial Yuan Interpretation No. 380). It is found that O O O is an academic journal, and the editing and publication of the journal is directly related to the freedom of teaching and learning, therefore, they belong to the research and teaching, the important academic matters, which are the categories of the academic freedom, and shall be safeguarded from any undue interference from the very beginning. As a result, while hearing this civil case associated with academic criticism and right to reputation, the court shall base upon the principal of weighing equally on both the academic freedom and the right to reputation, in order to appropriately measure the boundary therebetween.

Relevant statutes Article 11 and Article 22 of the Constitution, Article 195, Paragraph 1 of the Civil Act, and Article 17, Article 85, Paragraphs 1 and 2 of the Copyright Act
  • Release Date:2020-11-13
  • Update:2020-12-03