Abstract
In the age of digitalization and globalization, the issue of how ‘fake news’ affects democracy has attracted attention. Some governments have begun to regulate disinformation, but the tension between these measures and freedom of speech, which is the cornerstone of a democratic society, raises concerns. This chapter aims to show that the approach of militant democracy helps analyse the dilemma of disinformation regulation. In this perspective, I use Taiwan, a democracy that is facing the challenge of the ‘China Factor’, as a case study to understand the development and issues of disinformation regulation. This study aims to use the example of Taiwan to illustrate the lessons that militant democracy can impart to democracies dealing with disinformation.
The theory of militant democracy is based on Weimar Germany’s experience of ineffectually trying to fight an antidemocratic enemy. Some democratic governments adopted this militant attitude in their legal system, as shown by the German Basic Law. On the grounds of the defence of democracy, some freedoms were restricted. However, the development of militant democracy also emphasizes that the design of these legal tools must be humble, and the identification of the ‘enemy’, as well as the judicial review mechanism, must be prudent. In this chapter, I propose that, if a threat to democracy caused by disinformation is identified, the theory of militant democracy can provide some guidance on how the government should deal with disinformation.
By introducing the background of Taiwan’s democratic development, I aim to suggest that we should resort to the perspective of militant democracy in the discussion of Taiwan’s disinformation issue. Then, the chapter goes on to outline the government’s strategy. In addition to the overall strategy, several provisions of specific laws are introduced. However, this study also points out controversies concerning these regulative measures, including the basis of intervention, reviewers, review standards, and possible impacts from the perspective of the democratization process of Taiwan. It then reviews the regulatory struggle from the perspective of militant democracy and makes suggestions regarding legal certainty as well as the scope and means of disinformation regulation in Taiwan.
In this study, I argue that, from the perspective of militant democracy, it may be feasible—but dangerous—to use democratic methods to regulate speech and protect democracy. Governments must use legal tools cautiously, remembering that these regulations are restrictions on freedom of speech which, in addition, can be combined with soft measures—such as encouraging civil fact-checking mechanisms and promoting related education and training—to assist the positive development of the speech market. Disinformation is currently a serious threat to various democracies, and the case of Taiwan should be of value in this discussion.
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Notes
- 1.
Barclay (2018), p. 29.
- 2.
Allcott and Gentzkow (2017), p. 212.
- 3.
UK House of Commons Digital, Culture, Media and Sport Committee (2019).
- 4.
The law empowers judges to order the immediate removal of ‘fake news’ during election campaigns. For the complete content, see: Assemble Nationale (2018).
- 5.
The institution in Taiwan holding the administrative power in the check-and-balance system.
- 6.
“Anti-infiltration Act (反滲透法),” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0030317. This law is mainly designed to prevent the infiltration of Chinese forces trying to influence the operation of the Taiwanese domestic democratic system, including elections, through means such as financial subsidies. Although not directly targeted at disinformation, it is highly relevant.
- 7.
The name of the national parliament of Taiwan.
- 8.
Allcott and Gentzkow (2017), p. 214.
Allcott and Gentzkow, whose research about fake news has been quoted more than a thousand times, define fake news as ‘intentional and verifiable false news articles which can mislead readers (news articles that are intentionally and verifiably false, and could mislead readers.).’
Moreover, they exclude from this group the following similar instances: ‘1) unintentional reporting mistakes, such as a recent incorrect report that Donald Trump had removed a bust of Martin Luther King Jr. from the Oval Office in the White House; 2) rumours that do not originate from a particular news article; 3) conspiracy theories (these are, by definition, difficult to verify as true or false, and they are typically originated by people who believe them to be true); 4) satire that is unlikely to be misconstrued as factual; 5) false statements by politicians; and 6) reports that are slanted or misleading but not outright false.’
- 9.
Bayer et al. (2019).
See also the “Disinformation and ‘Fake News’: Final Report” by the UK House of Commons Digital, Culture, Media and Sport Committee, which instead recommended the terms misinformation and disinformation: ‘With those terms come clear guidelines for companies, organisations, and the government to follow, linked with a shared consistency of meaning across the platforms, which can be used as the basis of regulation and enforcement.’
- 10.
UK House of Commons Digital, Culture, Media and Sport Committee (2019).
- 11.
European Commission (2018a).
- 12.
Wardle and Derakhshan (2017).
- 13.
Bayer et al. (2019).
- 14.
UK House of Commons Digital, Culture, Media and Sport Committee (2019).
- 15.
Bennett and Livingston (2018), pp. 122–139.
- 16.
House of Commons of Canada (2018).
- 17.
European Commission (2018b).
- 18.
- 19.
V-DEM Institute (2019).
- 20.
For more details, see Sect. 3 below.
- 21.
Quoted in Tyulkina (2015), p. 11.
- 22.
- 23.
- 24.
Bayer et al. (2019).
- 25.
Bayer et al. (2019).
- 26.
German Criminal Code [2019]
Section 130 Incitement of masses:
(1) Whoever, in a manner which is suitable for causing a disturbance of the public peace,
1. Incites hatred against a national, racial, religious group or a group defined by their ethnic origin, against sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population, or calls for violent or arbitrary measures against them or
2. Violates the human dignity of others by insulting, maliciously maligning or defaming one of the aforementioned groups, sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population incurs a penalty of imprisonment for a term of between three months and five years.
Section 131 Depictions of violence:
(1) Whoever
1. takes material (section 11 (3)) which describes cruel or otherwise inhuman acts of violence against humans or humanoid beings in a manner which glorifies or downplays such acts of violence or which represents the cruel or inhuman aspects of the event in a manner which violates human dignity and
a) disseminates or makes it available to the public,
b) offers, supplies or makes it available to a person under 18 years of age or
2. makes content referred to in no. 1 available through broadcasting or telemedia services to
a) a person under 18 years of age,
b) the public or
3. produces, obtains, supplies, stocks, offers, advertises or undertakes to import or export material (section 11 (3)) of such content referred to in no. 1 in order to use it or parts obtained from it within the meaning of no. 1 (a) or (b), or no. 2, or to facilitate such use by another incurs a penalty of imprisonment for a term not exceeding one year or a fine. In the cases under sentence 1 no. 1 and no. 2, the attempt is punishable.
- 27.
Bayer et al. (2019).
- 28.
- 29.
For the early developments, although the German Basic Law does not specify the ideology of its ‘enemy’, Tyulkina (2015) points out that the provisions with the spirit of militant democracy, such as the political party ban, are specifically aimed at Nazi actions and their consequences. In a similar vein, the Italian Constitution clearly prohibits the disbanded fascist party from returning to the political mainstream in the form of any organization. At the beginning, the emergence and application of militant democracy was aimed at ‘fascism’. However, the concept of militant democracy was then widely used to combat communist parties. In 1956, the German Federal Constitutional Court used the party ban in Article 21 of the Basic Law to disband the German Communist Party, arguing that it was unconstitutional. It is worth noting that, after the collapse of the communist regime in the late 1980s, many emerging European democracies adopted a militant democratic position in their constitutions to prevent the revival of the original communist regime. Scholars point out that this change was made to protect their fragile and unstable democratic societies. See: Tyulkina (2015), pp. 41–48. For other examples, see: Thiel (2009a).
- 30.
Thiel (2009b), p. 1.
- 31.
Ginsburg and Huq (2018).
- 32.
See, for example, Ginsburg and Huq (2018), pp. 170–173.
- 33.
- 34.
We Are Social (2020); “Number of smartphone users in Taiwan from 2015 to 2020,” Statista, accessed November 23, 2020, https://www.statista.com/statistics/755288/taiwan-number-of-smartphone-users/.
- 35.
Freedom House (2020).
- 36.
“Temporary Provisions Effective During the Period of National Mobilisation for Suppression of the Communist Rebellion (動員戡亂臨時條款),” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000005.
- 37.
Human Rights Protection Promotion Group of the Executive Yuan (2002).
- 38.
Human Rights Protection Promotion Group of the Executive Yuan (2002).
- 39.
Taiwan Affairs Office of the State Council PRC (2019).
- 40.
In May 2017, the Constitutional Court of Taiwan declared that part of the civil law is unconstitutional without protecting same-sex marriage. See: J.Y. Interpretation No. 748. Constitutional Court, Judicial Yuan, https://cons.judicial.gov.tw/jcc/en-us/jep03/show?expno=748. However, due to the design of the referendum law, there was still a referendum on the topic.
- 41.
There are many similar news reports. See e.g.: Tsai (2018).
- 42.
Bureau Français de Taipei (2018).
- 43.
Ministry of Education (2018).
- 44.
“Act for Implementation of J.Y. Interpretation No. 748,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=B0000008.
- 45.
Chung (2019).
- 46.
Wang (2019).
- 47.
BBC Chinese (2020).
- 48.
For more details, see Sect. 3.2 below.
- 49.
Mainland Affairs Council (2019).
- 50.
Yeh (2020).
- 51.
“Anti-infiltration Act (反滲透法),” Art. 1, Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0030317.
- 52.
“Criminal Code of the Republic of China,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=C0000001.
- 53.
“Civil Servants Election and Recall Act,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0020010.
- 54.
“Presidential and Vice Presidential Election and Recall Act,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0020053.
- 55.
“Securities and Exchange Act,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=G0400001.
- 56.
According to news reports, more than 100 related cases were under investigation during the COVID-19 epidemic. Most of these cases are copies of similar information using photos that are completely false in terms of time and space (such as photos of the June 4th Tiananmen incident). Tsao and Chiu (2020).
- 57.
“Communicable Disease Control Act,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0050001.
- 58.
“Act Governing Food Safety and Sanitation,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0040001.
- 59.
“Social Order Maintenance Act,” Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0080067.
- 60.
For example, Huang (2020).
- 61.
Executive Yuan (2017).
- 62.
Executive Yuan (2017).
- 63.
Executive Yuan (2017).
- 64.
Executive Yuan (2017).
- 65.
For example, the government must promptly clarify disinformation.
- 66.
Executive Yuan (2017).
- 67.
Executive Yuan (2017). Taiwan has developed AI robots that check disinformation. One of Taiwan’s most commonly used communication software, LINE (an application similar to WhatsApp), has this feature built in.
- 68.
Executive Yuan (2017).
- 69.
As listed in the first part of Taiwan’s current legal framework related to disinformation, Existing laws, which can be divided into civil, criminal and administrative law.
- 70.
Executive Yuan (2017).
- 71.
Act on Promotion of Information Communications Network Utilization and Information Protection.
- 72.
In France, the official website of the government explains that ‘the law against the manipulation of information, which aims to better protect democracy against the different ways in which fake news is deliberately spread, was approved in its second reading at the National Assembly on 20 November 2018,’ and ‘the Constitutional Council validated the law and defined its scope on December 20, 2018.’ See: “Combating the Manipulation of Information,” French Government, accessed August 28, 2020, https://www.gouvernement.fr/en/combating-the-manipulation-of-information.
- 73.
Executive Yuan (2017).
- 74.
Executive Yuan (2017).
- 75.
Executive Yuan (2017).
- 76.
Executive Yuan (2017).
- 77.
“Anti-infiltration Act (反滲透法),” Art. 1, Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0030317.
- 78.
“Anti-infiltration Act (反滲透法),” Art. 2, Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0030317.
- 79.
“Anti-infiltration Act (反滲透法),” Art. 5, Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0030317.
- 80.
“Anti-infiltration Act (反滲透法),” Art. 2, Laws and Regulations Database of The Republic of China, accessed August 28, 2020, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0030317.
- 81.
National Communications Commission (2018).
- 82.
National Communications Commission (2018).
- 83.
Judicial Yuan (2019).
- 84.
According to the Judicial Yuan, the Principle of Retention For Judge’s Decisions usually deals with the issue of personal freedom, especially in situations when one’s personal freedom is under the control of the state (e.g., the decision to detain a suspect). The purpose of this principle is to let an objective and independent court intervene earlier in severe restrictions on personal freedom, so the parties can exercise their procedural defence rights in court. However, the restrictions on disinformation in elections are entirely different situations. The parties are not under immediate time pressure to exercise judicial defence rights. Opinions can also be expressed in administrative procedures. See Judicial Yuan (2019).
- 85.
The Judicial Yuan noted that, compared to the administrative branch, the court is not familiar with quick judgments on the authenticity of election-related content that might be disinformation. See Judicial Yuan (2019).
- 86.
The Judicial Yuan expressed the opinion that election-related public debates are the expression of public opinion and one of the core parts of a democratic system. Political advertisements are highly relevant to the expression of opinions in this process; in this regard, the court should, in principle, adopt a respectful and protective attitude and avoid premature involvement while maintaining ex post remedies. See Judicial Yuan (2019).
- 87.
Executive Yuan (2017).
- 88.
Executive Yuan (2017).
- 89.
Executive Yuan (2017).
- 90.
Executive Yuan (2017).
- 91.
Executive Yuan (2017).
- 92.
Executive Yuan (2017).
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Chen, KW. (2021). Dealing with Disinformation from the Perspective of Militant Democracy: A Case Study of Taiwan’s Struggle to Regulate Disinformation. In: Sieber-Gasser, C., Ghibellini, A. (eds) Democracy and Globalization. Economic Analysis of Law in European Legal Scholarship, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-030-69154-7_6
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