Wild at Heart lawyer Shih-Wei Lu (陸詩薇) is assisting in the defense of Dr. Tsuang Ben-jei of National Chung Hsing University in an important Taiwanese free speech case. Tsuang, a member of Chung Hsing’s Department of Environmental Engineering faculty, claimed at several public occasions that emissions from the Formosa Plastic Group’s sixth naphtha cracking plant were increasing cancer rates in the area of the plant. In response, two affiliates of FPG filed a criminal complaint and sued Dr. Tsuang for defamation seeking NT$40 million in damages. The case marks the first time that a corporation has taken legal action against an academic for his public statements.
In 2011 Tsuang, together with several co-authors, published their research on 66 factories in Taichung and Yunlin County including the Formosa group’s sixth naphtha cracking plant. According to Tsuang these facilities had been emitting heavy metals and dioxins, both known human carcinogens.
On November 3, 2011 Tsuang presented his study during an expert’s conference held by the Environmental Protection Administration’s (EPA) environmental impact assessment committee. Tsuang reported that heavy metals and carcinogenic substances contained in the exhaust gas emitted by the company’s sixth naphtha cracker plant (a petrochemical processing plant located in Yunlin County’s Mailiao Township) had resulted in higher cancer rates among residents in the area. Liberty Times and other major Taiwanese newspapers covered Tsuang’s report. Environmental activists believe that Tsuang’s study, and its wide coverage in the Taiwanese media, was one of the most important factors that mobilized public opinion against the controversial Kuokuang petrochemical project to build the country’s eighth naphtha cracker at Dacheng in central Taiwan’s Changhua County. The project was eventually shelved by the government in the run-up to the 2012 presidential election.
Although FPG was not an investor in the Kuokuang project, it nonetheless believed that Tsuang’s statements had harmed its reputation After the cancellation of the Kuokuang project , Kuokuang’s Chairman Chen Bao-lang (陳寶郎), became the Chairman of FPG’s flagship Formosa Petrochemicals
In March 2012, two FPG affiliates Formosa Chemicals & Fiber Corporation (台灣化學纖維股份有限公司) and Mailiao Power Corporation (麥寮汽電股份有限公司) filed a civil action against Tsuang alleging that Tsuang had harmed their reputation. The claim sought NT$40 million in damages. The two companies also filed a criminal complaint of aggravated defamation against Tsuang.
In a defamation case, the defendant may argue as a defense that the defamatory statement was in fact true except where the statement relates to private life).Criminal Code § 310 (3). Taiwan’s constitutional court has developed this defense further by finding for the truth of the statement when the accused had reasonable grounds to believe the statement was true when he disseminated the statement, and he can adduce evidence to support that belief. Judicial Yuan Interpretation No. 509.
A second defense is that a defamatory statement will not be subject to criminal sanction where the statement was made in good faith and it is a “Fair comment on a fact subject to public criticism.” Criminal Code § 311.
On June 6, 2012 the Taipei District Prosecutors Office rejected the criminal complaint and decided not to indict Tsuang. According to local media reports, the prosecutors said that Tsuang was invited to the EPA meeting as an expert and his remarks concerned public health and significant environmental protection issues. They said that even though his conclusions might not be entirely objective or precise, his motive was benign and he did not defame the group. They concluded that he would be able to raise the defenses of truth and public comment to justify the harm to FPG’s reputation.
On June 6 2012, the Taipei District Prosecutor’s Office rejected the criminal complaint and decided not to indict Tsuang. The prosecutor’s non-indictment decision was based on Judicial Yuan Interpretations No. 380 and No. 450. He reiterated that the nation seeks to protect the freedom of scholars and researchers, and has a duty to ensure this freedom is not infringed. In this respect, the law should defer to academia and not question the methods or results of academic research. The courts and prosecutors should not hastily conclude that research methods of results are crimes or unlawful wrongful acts. Otherwise, the prosecutor argued, large corporations would be encouraged to file criminal complaints with impunity to “achieve the goal of clamping down on academic freedom.”
The prosecutor’s decision also observed that FPG’s legal actions were intended to instill fear into the defendant and into the academic community, in an effort to silence criticism.
After a District Court prosecutor decides not to indict, the alleged victim of the crime has seven days to request the prosecutor’s office at the High Court (or the Prosecutor-General) to reconsider this decision. Code of Criminal Procedure § 256(1). FPG has applied for reconsideration of the decision not to indict Tsuang. Even if the High Court’s prosecutors do uphold the decision not to indict on reconsideration, FPG will have succeeded in prolonging the threat of criminal sanction against Tsuang.
Meanwhile, Tsuang still faces a civil suit in which FPG is asking for NT$40 million in damages and a public notice of apology in newspapers. In their civil complaint the FPG affiliates accused Tsuang of having damaged their reputation by citing false data, which has alarmed residents in the area to the detriment of the group’s business reputation.
During the preparatory proceedings of the civil action at the Taipei District Court, Tsuang has been defended by a team of public interest lawyers, including Wild at Heart lawyer Shih-Wei Lu. Although proceedings have only just commenced, the judge has already questioned the adequacy of the evidence brought forward by FPG. Even though FPG may lose these cases, its ultimate legal strategy may still be successful if these lawsuits intimidate other academic scholars or members of the public from discussing toxic emissions in public forums.
Shih-Wei Lu has also published an extended comment in Chinese on the case and its significance in the Taiwan Law Journal, No. 201