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CGJ ruling upholds ban on broadcast of 'sexual' messages

Council cites need to prevent transactions that may lead to exploitation of juveniles

CGJ ruling upholds  ban on broadcast of 'sexual' messages

The Council of Grand Justices yesterday ruled that a stipulation banning the distribution or broadcasting of messages that "entice or incite" people to engage in any form of sexual transaction does not violate people's freedom of speech or publication, as granted in the Constitution.
The stipulation - article 29 of the Child and Youth Sexual Transaction Prevention Statute - specifies a maximum five-year jail sentence and a maximum fine of NT$1 million will be handed out to those who distribute messages in publications, advertisements, television or other media that encourage people to buy things that are sexual in nature, including sexual sevices.
Ho Minh-huang, a judge at the Taiwan Kaohsiung Juvenile Court, petitioned the CGJ for an interpretation of the constitutionality of the stipulation, as he thought that the stipulation was in conflict with Article 11 of the Constitution that granted the people freedom of speech and publication, as well as the right to work.
According to Ho, the stipulation also possibly violates Article 23 of the Constitution that states that such freedoms and rights shall not be restricted by any law, except those that may be necessary to prevent infringement upon the freedoms of other people, to avert an imminent crisis, to maintain public order or to advance public welfare.
However, the grand justices deemed that the stipulation "reasonably" and "legitimately" restricts people's freedom of speech, citing that the main aim of the stipulation is to protect public interests from illegal sexual transactions.
"It is illegal to have sex with those under the age of 18 and the ban against distribution of messages encouraging sexual transaction is aimed at preventing illegal sexual transactions involving children and juveniles as well as child sexual exploitation," the justices stressed in their constitutional interpretation.
"Protecting children from illegal sexual activities is considered a universal value," the grand justices noted, reemphasizing, "The inner meaning of the stipulation is certainly legitimate enough to prove the stipulation's constitutionality."
Moreover, the grand justices indicated that according to the inner meaning of the stipulation, if people spread messages encourages sexual transactions, the spreaders should be punished no matter whether the messages actually incite juveniles to engage in sexual transactions.
To explain why the stipulation has to be strict, the grand justices stressed that once messages pertaining to sex transactions are spread, juveniles are probably exposed to them and enticed to engage in sexual transactions, even if the content of the messages does not encourage child-sex transactions.
"The exception is if the messages do not contain child sexual transactions and do not encourage juveniles to engage in sexual transactions, and if those who spread the message can prove that they have provide some kind of mechanism to prevent people under the age of 18 from receiving the messages," the grand justices pointed out.
According to Judicial Yuan Secretary-general Fan Kuang-chun, the grand justices especially noted that because the ways to receive messages from different media are not the same, authorities responsible for supervising the media should set up different management systems for different media and propose different penalties for illegal message senders.
Fan refused to comment on who would be punished if a message was sent to a juvenile because the sender was informed by the juvenile he was over the age of 18.
On the other hand, some grand justices have different opinion about the Grand Justice Council's ruling on the constitutionality of the stipulation, citing the penalty imposed on violators seems to be too heavy and not practical.
Grand Justice Lin Tzu-yi (林子儀) pointed out that there should be a different approaching in dealing with young people who spread sexual messages for fun and those who do so deliberately with illegal aims.
The stipulation should have specified what kind of violators should be punished more heavily, Lin criticized.

Updated : 2021-11-30 13:24 GMT+08:00