When journalists compete against each other for "exclusives," do they end up hurting people? In wave after wave of libel suits, just who are the culprits and who are the victims? Can fair lines be drawn between what is and is not fit to print? Does the law have the answers?
CommonWealth magazine's cover story last July asked: "Is the highest circulation something that is bought?" The article cited "rumors" that 30% of all copies of Liberty Times are given away. The Times immediately launched a lawsuit in response.
On January 22 district court judge Liang Yao-pin ruled that CommonWealth was innocent of libel, giving six reasons, including that the report was largely about the competing marketing strategies of the three major papers. The Liberty Times made its displeasure with the verdict clear and vowed to appeal.
A high-risk profession
Since the end of martial law, the scope of freedom of speech in Taiwan has expanded greatly, but where exactly are its limits? And what is irresponsible, libelous writing? Everyone has their own way of looking at this issue, and these differing views have led to growing numbers of lawsuits.
Business Weekly reported that Minister of Transportation and Communications Tsai Chao-yang spent large sums of public money on refurbishing his government-provided residence, and that Lai Kuo-chou, Lee Teng-hui's son-in-law, frequently didn't show up for classes he was teaching at Chengchih University. These stories provoked lawsuits from the people mentioned, and in both cases the courts ruled that the editors-in-chief and writers of the publications could not prove the stories were true. They were given sentences commutable to fines.
Journalists, of course, don't always lose in court.
Last year, the lawsuit that caused the biggest stir in news circles was the case involving Yazhou Zhoukan's report that Liu Tai-ying, head of the KMT's investment committee, promised that the committee would give US$15 million to US President Clinton's election campaign. Liu claimed that the report was untrue and brought a suit against the magazine, but the court ruled that Yazhou Zhoukan was not guilty.
Sometimes, the plaintiff just wants to let off steam. In July of last year the Independence Morning Post ran banner headlines on several days in succession stating that Yin Tsung-wen, head of the National Security Bureau, had ordered investigators to bug the phones of legislators who were opposed to dismantling the provincial government. Yin Tsung-wen held a press conference to clear up the matter, and after his repeated requests for the paper to issue a correction were ignored, he filed a lawsuit. The Independence Post then launched its own counter-offensive, publishing a large piece on the bureau's responsibility for the "white terror"-the political oppression of earlier decades. In a dramatic turn of events, the paper suddenly printed an apology for the incident, and the two sides settled.
The process must be just
In the decade since the ban on new papers was lifted, the number of lawsuits aimed at the media has been growing constantly, so that libel suits are now the biggest nightmare of the news industry. Unfortunately for journalists, the only sure way of avoiding guilt in libel suits, is, as the law states, to "prove that what was reported was true."
For news hounds sniffing out a good scoop and scurrying to meet daily deadlines, triple-checking each and every fact before publishing is just not practical.
Huang Chao-sung, the publisher of the China Times, points out that his paper publishes about 4000 different news reports every day, or about 1.5 million a year. Reporters, of course, should do their best to check their facts, but if they are required to provide absolute proof, then the presses would often be held until it is too late to come out at all.
What reporters can do is simply follow a procedure that ensures some fairness. The associate publisher of the Economic Daily News holds that the least reporters can do is to check with the parties against whom accusations are made. Though the people involved may simply lie through their teeth and deny everything, journalists must allow them a chance to make a statement. Overseas, most papers, when they are unable to contact someone, will at least write that "so and so could not be reached for comment." Only by so doing can you meet reasonable professional standards.
Does God know the truth?
The problem is that meeting these professional guidelines will not necessarily ensure that a report is true. What is the truth? And can the media, through investigative reporting, reveal it?
In January Wu A-ming, the chairman of the Liberty Times, attacked the Com-monWealth report. While saying that the Times would reflect upon some of the criticisms CommonWealth made, he argued that the charge that 30% of all Liberty Times-some 300,000 copies a day-were given away did great harm to a 17-year-old business that employs 1000 people, and he wanted CommonWealth to offer some proof.
Yin Yun-peng, CommonWealth's editor-in-chief, answered by arguing that the magazine was interested in Taiwan's industry and commerce and in businesses' competitive strategies. She felt that if the structure of the newspaper market was changing so that individual papers were printing 1 million copies a day, then it could have an enormous impact and was a worthy topic for public discussion. Giveaways and sales promotions have been frequently employed in Taiwan. She pointed out that when the magazine PC Office was starting out, its cover price was NT$99, but it offered prizes worth as much as NT$10,000. And The Times (of London) has reduced its cover price from 45 pence to 10 pence, without harming either its quality or reputation. Hence, reporting on giveaways and price reductions as a sales strategy constitutes a discussion of marketing choices, not a value judgment. Yin Yun-peng says that there is no organization in Taiwan that verifies the accuracy of distribution figures, and so the number 300,000, was, as the article made clear, based on "conjecture, hearsay and rumor."
Luo Ming-tung, CommonWealth's lawyer, said its reporters had widely examined the records of newspaper delivery companies, and thus it could not be denied that theirs "was a reasonable estimate." What is the "truth" regarding the number of sold copies of the Liberty Times? Because the proof was all in the Times' files, "God doesn't know; the court doesn't know; only the publishers themselves know," Luo said.
Evidence and consequences
Getting evidence together is a difficult matter, and so law professionals have the expression, "If the burden of proof is on you, you're probably going to lose." Business Weekly ended up having to shell out because it was unable to supply evidence for what it reported.
In one of her reports, Business Weekly reporter Lin Ying-chiu cited a Legislative Yuan document in which it was noted that one cabinet member spent more than NT$2.78 million of public money renovating his government-provided residence. Lin investigated and came to the correct conclusion that it must be the residence of Minister of Transportation and Communications Tsai Chao-yang. Tsai, however, arguing that the report was far from the truth in some respects and that it had tarnished his name, launched a lawsuit.
Lin holds that her one oversight was in not getting in touch with Tsai before publishing the report, but she says that the mistake was only a "number."
In court, the head of the ministry's office of general affairs testified that the amount spent on refurbishment was only NT$280,000, although he acknowledged that a fax machine was also purchased and that the renovation took 10 working days, neither of which were included in that figure.
Lin requested that professionals be allowed to inspect the premises and estimate the cost for making such a renovation according to current market prices. But the high court turned down the request, arguing that it wasn't necessary since it would "have no effect on determination of guilt or innocence in the case."
The court ruled against Business Weekly, holding that it had "through its over-emotional attacks on the plaintiff's character published written criticism that was malicious in intent." The ruling cited such descriptions of Tsai as "intolerant," "ruthless," and "merciless."
This wasn't the first time Business Weekly was hauled into court. In 1994 almost a fifth of its 5000-plus character story "Exposing Taiwan's First Family" was about Lai Kuo-chou, the son-in-law of President Lee Teng-hui who was then secretary-general of the National Press Council. It called him "a representative of Lee in his efforts to control the media" and said that Chengchih University refused to offer him a new contract because he "often didn't show up for class." A month after the report came out, Lai's lawyer wrote a letter pointing out eight errors. When no agreement was reached, Lai filed a lawsuit.
The high court ruled, "The defendant is unable to supply the court with the names, ages and residences of students who said that the plaintiff was often late for class, and this court has no way of asking each and every student from among so many. . . There can be no doubt that in rashly selecting such descriptions to print, it was breaking the law."
In its decision against the magazine, the court ruled, "It is hard to determine whether the defendant's incorrect statements regarding the plaintiff's dissertation adviser were intentional, but it would not have been difficult to determine who he was. The fact is that Li Chan has an established position within the news industry but has no position within the ruling party. That the defendant selected only to mention the major party figures Chu Chi-ying and Cheng Chen-ming showed that he intended to suggest that the plaintiff was using connections with high officials to try to advance his own career."
The fault lies with the reporting?
What level of proof must journalists offer before they are let off the hook? The courts themselves seem to have differing opinions on this matter.
For the Yazhou Zhoukan case, Li Wei-hsin, a judge for the Taipei District Court, wrote in his ruling, "In regard to the report on the US$15 million campaign contribution, the source was Chen Chao-ping [general manager of the PR firm Leading Strategy Consulting]. Although the reporters Hsieh Chung-liang and Chen Wan-ying backed their report of this contribution solely on the statements of Chen Chao-ping, they also included the denials of the plaintiff [Liu Tai-ying] and [Clinton aide] Mark Middleton, even though relatively little space was devoted to the denials. Setting aside the issue of whether the accusation was true, the two defendants in reporting the statements of Chen Chao-ping did provide attribution for the charges, and thus the report was not entirely unsubstantiated."
Judge Li Wei-hsin also loudly trumpeted the importance of freedom of the press, using a "broad" interpretation of innocence as defined by "publishing statements in good faith" in clause 311. Li Wei-hsin's ruling was widely hailed by the media as a victory for press freedom.
Yet in the second case involving Business Weekly the courts ruled that the reporter and editor-in-chief were guilty, thus putting press freedom under pressure. Everything went back to square one.
Reporters are mystified about just what is "publishable" and what subjects are "suitable for open discussion."
According to Article 310 of the Criminal Code: "In cases of libel, if it can be proven that what was reported was true, then there is no guilt. But cases involving private morality and public interest are not so limited."
But what exactly are "private morality" and "public interest"? It's easy to see how there could be problems determining what those terms cover.
In 1989 Ho Ya-wei, a reporter with Global Views Monthly, criticized Huang Chao-fu, the head of the Hua Chi shoe company, for becoming so involved in politics that he neglected his company so badly that it folded. Huang charged Ho Ya-wei with libel and the courts, ruling that the reporter had damaged Huang's reputation, passed down a five-month non-commutable prison sentence.
The Taipei District Court ruled that although the topic of Ho Ya-wei's report-about how Huang Chao-fu had spent NT$20 million in his first campaign as a KMT nominee for the legislature but received only 200 votes-could be described as "fair game. . . its sarcasm virtually dripped from the page. . . Because this affected the reputation of the plaintiff's private moral character, the defendant was clearly acting maliciously."
This ruling stirred up great protest in the media and legal worlds. In its aftermath, the graduate school in journalism at Chengchih University held a seminar about the case, to which it invited judges, lawyers, reporters and scholars.
The media held that Ho's choice of words wasn't merciless, and that if his report constituted libel, then countless other reports could also be so judged.
Mean words
Luo Wen-hui and Fa Chih-pin, the former a journalism professor and the latter a law professor at Chengchih University, wrote a documentary research paper entitled "Objective Reporting and Libel" based on 20 judges' reactions to Ho Ya-wei's article. The results showed that the judges had widely divergent views on what constitute "public interest" and "private morality."
The paper also discovered that even if the reporter had followed the principles of objective reporting by rechecking evidence and writing balanced reports, these efforts had no effect on judges' view of the basic nature of this incident.
Such diversity of legal opinion can be seen in actual rulings by judges. After the Tiananmen massacre in 1989, composer Hou Te-chien declared on mainland's Central Television, "Before I left Tiananmen Plaza on June 4, I saw no evidence of people being beaten to death." When Hou left the mainland by stealing into Taiwan, The China Times and China Times Weekly both published pieces mocking him.
One report said, "The investigators discovered that Hou had two faces. With investigators he was weak and pathetic; yet in front of reporters he was a horse of an entirely different color." "With his duplicity and emotionalism. . . no wonder everyone suspected that his story was fabricated." The other asked, "What does the mainland think of this 'descendant of the dragon'[meaning "a Chinese" and also making a reference to Hou's most famous work 'Descendants of the Dragon']? The Communist cadres say, 'He is unprincipled and blows with the wind.' Journalists say, 'If he hadn't gone to Taiwan, where else would he could he go to pass his days?'. . . He can't earn his keep forever off that one work 'Descendants of the Dragon.'"
Hou Te-chien filed a lawsuit against the two publications charging libel, and the court ruled, "When describing specific people and events, the news media can often choose words that seem rather exaggerated and perhaps even approach ridicule. But when you look into their intentions, the press just want to report to the best of their abilities and make their reports more readable and fun."
Earnest apologies, courtroom battles
From the perspective of the news media, a judge's scope for "individual discretion" is too great. How does one write news so it doesn't constitute libel? There is simply no standard answer to that question-which makes it difficult for the news industry to do its job without imperiling itself.
Wealth Magazine, which has twice been sued by people with doctorates in law, has a method for avoiding lawsuits.
In 1991, after legislator Ju Gao-jeng founded the Social Democratic Party, Wealth published a story titled, "The Social Democratic Party's Connections to Financial Consortiums." In response, Ju launched a lawsuit, which dragged on for more than a year before the magazine was found not guilty. Wealth Editor-in-Chief Liang Yung-huang said that it was very difficult fighting off a lawsuit from Ju Gao-cheng, who has a doctorate in law from a German university. "We kept wanting to settle, but Ju wanted to fight it out in court."
In 1994 Wealth reported that the lawyer Chiu Chang, who was scurrying back and forth across the Taiwan Strait, really didn't have much professional knowledge about mainland policy and that she was prone to making exaggerated, sensationalistic statements. Chiu Chang filed a lawsuit against all 20 people on the magazine's masthead, and because the magazine is also distributed in America, filed a civil suit in US courts as well. The magazine worked hard gathering evidence, and once again the courts found them not guilty.
"It's important to understand the motive behind the lawsuit," notes Wealth Editor-in-Chief Liang Yung-huang. Politicians won't be able to consider things reasonably during elections, but once the election is over they will just drop the case. Another sort of person just wants to "make their position known." Once, based on public reports made by the Control Yuan, the magazine reported that one member of the Taiwan Provincial Assembly had assets worth NT$40 million. He sued. How was the magazine to have known that there was a typo on the document that added an extra zero? In filing the lawsuit, the assembly member just wanted to send a message to his electorate that he was still a clean politician. He didn't really want to get entangled in a dispute with the media, and so they were quickly able to settle.
"Save the names of the people who sue you in a file," says Liang, noting that for a magazine such as theirs which frequently delves into sensitive topics like personal wealth, there are two kinds of people they interview: those who will sue and those who won't. "We're not interested in flattering," and so the magazine won't change its tone for fear of lawsuits.
"Journalists have no choice about whether they will be sued or not," says Liang Yung-huang. The method employed by Wealth is to consider the possible truth behind what people write in letters of protest, and, if the magazine has made a mistake, sincerely apologize. Only if they can't settle will they have to fight off a lawsuit in court.
Loss from self-censorship
Press freedom does not exempt the media from prosecution. And as soon as a lawsuit is filed, it raises other questions: What kind of transgression is libel? Should it be included in the criminal code?
Finding reporters guilty under criminal law leads directly to stifling press freedom.
Fa Chih-pin, a professor of law at Chengchih University, points out that early on most countries included slander and libel in criminal law. After World War II, with strengthened calls from international organizations to protect human rights, the problems of finding people guilty for slander and libel under criminal law gradually began to become apparent. "The major difference between criminal and civil law is that people can be locked up under criminal law, and when people are in jail they clearly don't have freedom to speak and publish."
As a result of this string of lawsuits, Legislator Alice Kao, who was formerly a reporter herself, called a public hearing in the hope that she could make things easier for journalists. Is there some better way than finding reporters guilty under criminal law, she asks, some way both to protect the rights of those who are victims of libel and also to allow for greater self-regulation within the news media?
Huang Chao-sung points out that during his eight-year tenure as editor-in-chief of the China Times there were more than 20 lawsuits. Handling these suits has become a major burden for the news media. What is deeply troubling to the media is that the law places the burden of proof on the accused, but at the same time reporters have to protect their sources. "Reporters doing interviews are in fact very helpless; they exist in an environment in which they never know what is going to happen. Will the persons involved try to destroy evidence?"
What is even more worrying to the news media is that fear of lawsuits will cause reporters to become overcautious and censor themselves.
"Although the courts have the power to investigate and punish, judges have been known to make mistakes and find the innocent guilty. How could it be possible that reporters didn't sometimes make mistakes too?" asks Kao Yuan-liu, the assistant chief of local news for the United Daily News. When covering a loan scandal that involved members of the provincial assembly, the paper obtained some accurate information, but didn't dare to write about it, because they wouldn't be able to divulge their sources in court. "Because of fears about libel suits, we were forced to wait. We investigated every day but had to wait until the case got to the courts before we could report upon it." He sighs in frustration over the media's weak position.
Harsher punishment for the media
The idea of the press as the fourth estate-there to protect the public's right to know-isn't the main thing in the view of Kao Yuan-liu. "Reporters need a sense of righteousness, and the courage to uncover dirty deeds. This requires the support of society and the law."
Huang Hung-jen, formerly Business Weekly's editor-in-chief, is a repeat offender, twice found guilty of libel. He came to the conclusion that he couldn't shoulder the burdens of the job and became an editorial consultant instead.
Chin Wei-chun, Business Weekly's publisher, doesn't deny that libel is a crime, but he stresses the importance of looking at the targets of media allegations. In particular, politicians have a lot of power to use against the media. He says that Western society views the media as a public "watchdog." Watchdogs bark every day and their owners may find this annoying, but does this lead them to kill their dogs? When reports are wrong, corrections can be demanded. Otherwise, what is the point of the publishing law!
"Guilty verdicts aren't keeping the cicadas from chirping in the winter," says Soochow University law professor Li Nien-tsu, alluding to a Chinese idiom about silence: "as quiet as cicadas in winter." "Since the end of martial law no one has been imprisoned for libel. The problem isn't about what the punishment may or may not be-it's in the fact that a lawsuit requires going before the public prosecutor half a dozen times and then going to court half a dozen times. That's what keeps the cicadas quiet."
He suggests that scholars should carry out research investigating exactly how many journalists have been found guilty of libel over the last decade and thus determine who was using criminal lawsuits as a weapon to protect themselves. Could it be that they were mostly politicians, whom society ought to hold to the highest standards?
From the standpoint of journalists, Huang Chao-sung recommends that the relevant clauses in the criminal law code ought to be entirely eliminated, because these stipulations in criminal law impinge upon the constitutional right to freedom of speech and freedom of the press.
Li Nien-tzu agrees with Huang Chao-song's way of looking at things. He believes that under the ROC criminal code slander is punishable by a sentence of a year or less, whereas libel can be punished with sentences of up to two years. "It is as if 'freedom of the press' just means that journalists suffer harsher punishments. If the media is the fourth estate, it ought to have more room to maneuver."
Fines are no solution
Li Nien-tzu suggests that it would be better to make fines larger, both allowing the victims to receive compensation while still encouraging the media to be more cautious. "Restoring the victims' rights is more important than imprisoning the offending journalists," he says.
Financial compensation under civil law is how the United States handles cases of libel. From 1989 to 1990 the average award in a US libel case was US$4.5 million. From 1992-1993, it declined a bit, but was still quite high at US$1.1 million.
Nevertheless, making libel no longer a criminal offense is a controversial proposal, on which people hold widely divergent opinions. Many, including media maven Hsu Chia-shih, question whether the media can exercise self-control, worrying that they would lean toward sensationalism in an attempt to please the public.
Li Fu-tien, a professor of law at the World University of Journalism and Communications argues that it is too difficult for people to obtain compensation, and that it is easy for companies to dodge such attempts. He is also worried about the problem of a small number of media outlets lacking discipline, morality and honesty-for the bad as well as the good will enjoy the looser regulations.
Tuan Chung-min, dean of the law school at Chengchih University, says that the extent to which the media can report things without substantiation is startling, and that "keeping it under criminal law would provide another option for legal recourse." Which is to say that the victims could decide the legal tack to take. "Its inclusion in the criminal law code doesn't require it to be so prosecuted," he argues. "Perhaps it's not necessary to get rid of it."
Chengchih University law professor Fa Chih-pin supports the removal of libel from criminal law, but he holds that its excision will be very difficult to pull off, "because it is customary to use criminal law to protect one's reputation. The entire society is used to looking at it from that angle."
Huang Mei-yueh, the high court judge who ruled that Business Weekly was guilty in the Tsai Chao-yang case, says that removing libel from the criminal law code is the direction that most nations are going. From the standpoint of giving the press more room to maneuver, it's worth considering, she says, but so doing will also require compensation granted through civil lawsuits and self-regulation within the media.
When asked her personal opinion on the issue, she responds, "The opinions of judges are displayed entirely in their rulings." Though public figures may be the target of media reports, the media ought to respect their right to privacy.
Self-regulation is better
Legislator Alice Kao holds that the numerous recent examples of legislators filing criminal libel charges suggests that it will be hard to remove libel from the criminal law code. She suggests that revising the code may prove more feasible.
The case for revision is based on the fact that the criminal code was set in 1935 before the constitution was drawn up, and that some of its clauses may no longer be relevant.
After consulting legal community opinion, Kao proposed revisions that included adopting the principle of "malicious intent" as determined by the US Supreme Court in its landmark 1964 decision "New York Times v. Sullivan." In that case the court ruled that to be found not guilty journalists need only to do a reasonable job of gathering evidence and obtaining assurances of truth and show no malicious intent to destroy someone's character.
Freedom of the press is essential for a democratic society, and its importance goes beyond simply protecting the rights of journalists to do their job.
When it saw the phrase "the value of press freedom" in the Yazhou Zhoukan ruling, Business Weekly started a petition that it distributed with the help of the Association of Taiwan Journalists, the Judicial Reform Foundation and the Taiwan Association for Human Rights. The petition asked the Judicial Yuan to request the grand justices to interpret the constitution, so that the limits of press freedom can be made clearer.
There is a close, symbiotic relationship between the news media and those who are the focus of their reports, and of course the press hopes to maintain a good relationship with them. After the press made repeated appeals to the legislature, legislators quickly passed the "Freedom of Information Act," which delineated what sorts of information were fair game for journalists to make public, thus setting clear rules of the game.
As modern media have made their rise, cases of libel have followed in their shadows. Finding the proper balance in modern democratic society between freedom of speech, on the one hand, and protection against libel, on the other, has resulted in a continual struggle. Even if libel is no longer prosecuted under criminal law, this search for balance will likely continue. It may well be a chronic condition of a democratic society.
p.97
Where should the line be drawn between freedom of speech and protection against libel? Walking this tightrope, journalists must never let down their guard. (illustration by Tsai Chih-pen)
p.99
Libel suits are becoming more and more common, though cases in which both plaintiff and defendant are members of the media are rare. The photo shows arguments being made in court for the "CommonWealth v Liberty Times" case. CommonWealth was eventually found not guilty.
p.100
When journalists are reporting on sensitive topics, they often have to protect their sources. If they are subsequently sued, producing evidence causes major problems. (photo by Vincent Chang)
p.101
Apart from making news, reporters must also be able to bear the pressures of long waits and fears of being scooped .
p.102
(above and below) Public figures, such as film and recording stars and politicians, have always been media targets. Should the media respect or take into consideration their right to privacy? It's worth thinking about.
p.104
Have lawsuits become an onerous burden for the news media? The photo shows Legislator Alice Kao holding a public hearing about media lawsuits. Some invited journalists couldn't attend because they were in court.
p.105
Getting legal notice about the filing of a lawsuit will always make reporters and editors-in-chief anxious.
p.107
In the ten years since the ban on new newspapers was lifted, the space for free discussion has greatly widened. But media expert Hsu Chia-shih, who was originally a reporter himself, is worried about the media's tendency toward "triple flattery"-of politicians, business and the general public. The photo shows a street demonstration put on by the Association of Taiwan Journalists calling for greater social responsibility on the part of the media. (photo by Vincent Chang)
Apart from making news, reporters must also be able to bear the pressures of long waits and fears of being scooped.
（above and below） Public figures, such as film and recording stars and politicians, have always been media targets. Should the media respect or take into consideration their right to privacy? It's worth thinking about.
（above and below） Public figures, such as film and recording stars and politicians, have always been media targets. Should the media respect or take into consideration their right to privacy? It's worth thinking about.
Have lawsuits become an onerous burden for the news media? The photo shows Legislator Alice Kao holding a public hearing about media lawsuits. Some invited journalists couldn't attend because they were in court.
Getting legal notice about the filling of a lawsuit will always make reporters and editors-in-chief anxious.
In the ten years since the ban on new newspapers was lifted, the space for free discussion has greatly widened. But media expert Hsu Chia-shih, who was originally a reporter himself, is worried about the media's tendency toward "triple flattery"--of politicians, business and the general public. The photo shows a street demonstration put on by the Association of Taiwan Journalists calling for greater social responsibility on the part of the media. （photo by Vincent Chang）
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