Judgment
regarding potential criminal defamation by Wu Ta-Cheng
Chinese
Taipei
Case:
Judgment regarding potential criminal defamation by Wu Ta-Cheng
Key Words:
defamation; damage to commercial reputation; flea market; liquidation stock
Reference:
Taipei District Court Criminal judgment; Judgment (88) Yi Tzu No. 2893
Industry:
Electric Appliance Retail (5451)
Relevant Laws:
Articles 22
and 37 of
the Fair Trade Law
Summary:
- The Prosecutor's Opinions:
The defendant, Wu Ta-Cheng, clearly knew that the US-made Verante stereo speakers
that he sold were imported through another agent and were not liquidation
stock. However, for the purpose of competition, he, at the "plug-ins"[electrical
appliances] section of the June 1998 issue of the "Flea Market Magazine",
published an advertisement which stated the followings. "One pair surround
speakers plus center speaker for NT$ 3,900. US Verante VHT141S surround speakers
plus VHT142C center speaker, high-grade red sandalwood veneer, guaranteed
original package import, customs duty receipt included (foreign agent liquidation
stock). Call Mr. Wu at … ". The advertisement was sufficient to damage
the commercial reputation of the King Best Electrical Corporation ("King
Best"), the exclusive agent for those speakers in Chinese Taipei. The
defendant was prosecuted as having committed an act of defamation under Article
310 (2) of the Criminal Code and having violated Article 22 of the Fair Trade
Law. The defendant therefore should be penalized under Article 37 of the Fair
Trade Law.
- Reasons of the Judgment:
(1) According to the Criminal Code, to constitute a criminal defamation three
requirements shall be fulfilled. First, there shall be real intention to injure
the reputation of another and to expose such to the public; second, there
shall be an act of pointing to or circulating untrue affairs; and third, the
act shall be sufficient to injure the reputation of another or to degrade
another. No one will be guilty in the absence of one of these elements. Moreover,
Article 22 of the Fair Trade Law provides that an enterprise should not, for
the purpose of competition, articulate or disseminate any untrue affairs capable
of damaging others' commercial reputation. However, a violation of Article
22 is founded only when a person has the intention to damage another's commercial
reputation; makes or disseminates a statement for the purpose of competition;
and whose statement must be untrue and be sufficient to damage the commercial
reputation of another. Neither it to be guilt if one of these elements is
not established.
(2) The prosecutor's charge on the defendant of criminal defamation and violation
of Article 22 of the Fair Trade Law mainly based on the complainant's allegation
and certificate of exclusive agency, and the advertisement at issue. During
questioning, the defendant admitted the fact of publishing the advertisement
in the Flea Market Magazine, but denied that any crime was involved. He argued
that the term "liquidation stock" was employed as an advertising
tactic for the purpose of promotion by indicating that the product was being
sold at quite low price. Therefore he had no intention of defaming the complainant
or injuring his commercial reputation. Investigation showed that the advertisement
on page 211 at the "plug-ins" section of the June 1998 issue of
the Flea Market Magazine was as follows. "One pair surround speakers
plus center speaker for NT$ 3,900. US Verante VHT141S surround speakers plus
VHT142C center speaker, high-grade red sandalwood veneer, guaranteed original
package import, customs duty receipt included (foreign agent liquidation stock).
Call Mr. Wu at … ". The text of the advertisement was merely describing
the type and price of the product. The term "foreign agent liquidation
stock", which was included within parentheses and was not attention grabbing
or printed in large font, formed only a small part of the advertisement and
was not the spotlight of its content. Further, at the advertisement the "agent"
was not mentioned by name. Therefore, the defendant's purpose was evidently
for selling product, but not to defame or to injure commercial reputation
of another. If the defendant had such intention of defaming and injuring commercial
reputation of another, at the advertisement he would have included a phrase
such as "liquidation stock of the King Best Corporation", or applied
large font or other means so that at a glance readers could know that the
"King Best" was the agent of the product to satisfy his purpose
of defamation. Here, reference should be made to that many businessmen, at
their storefront advertising boards, employed words such as "fire sale,"
"liquidation stock, only NT$ ×× per piece," or "below-cost
liquidation" to indicate that their prices were below market. Such practice
was a method of marketing in order to attract consumers. Therefore, the advertisement
at issue, given the general belief of the society, could only inform consumers
that the products might be sold at special low prices and induce them to buy.
It would not mislead consumers into believing that the product sold was genuine
liquidation stock of the agent and thus the defendant's argument that he had
no intention to defame or injure another's commercial reputation can be established.
In conclusion, while the defendant's application of the term "foreign
agent liquidation stock" at the advertisement was inappropriate, it shall
not be found that he had intention of defaming or damaging another's commercial
reputation. Therefore, the circumstance did not fulfill the requirements of
defamation of the Criminal Code or Article 37 of the Fair Trade Law. Further,
this Court did not find any other direct evidence to support the allegation
of defamation or violation of Article 37 of the Fair Trade Law. For the reasons,
this Court shall not, basing merely on the complainant's allegation and certificate
of exclusive agency and the advertisement at issue, find the defendant to
be guilty. As the defendant's guilt can not be proved, according to the law
a not-guilty judgment shall be rendered.
Summarized by Ch'iu, Shu-Fen
Supervised by Hsu, Chao-Ying
＊＊:
For information of translation, click here