13 April 2021
The Grand Criminal Chamber of the Supreme Court rendered the 109-Tai-Shang-Da-1869 Ruling of December 9, 2020 (hereinafter, the “Ruling”), holding that the “intent to pursue the illegal interests of the actor or any third party” within the meaning of Article 41 of the Personal Data Protection Law should be limited to property interests, while the “damage to the interests of others” is not limited to property interest.
According to the facts underlying this Decision, Appellant A obviously was aware that the use of personal data not only requires the consent of the individuals but also should be limited to the extent of necessity for specified objectives. However, in an attempt to undermine Complainant B’s interest, Appellant delivered and sent data concerning the Complainant’s privacy as obtained from materials such as Company C’s certificate of claims, compulsory enforcement distribution table, and centralized stock depository inquiry reports, which A had obtained by applying to the court to review court files in a separate case, to X and Y, who had nothing to do with the case. As a result, the Complainant’s privacy (personality right) was undermined. The legal dispute involved in this Ruling is whether the “interests” in the “intent to pursue the illegal interests of the actor or any third party or undermine the interests of others” under Article 41 of the Personal Data Protection Law are only limited to property interests.
According to the Ruling, an observation of the legal amendment process of Article 41 of the Personal Data Protection Law indicates that there are two types, one being “the intent to pursue to illegal interests of the actor or any third party” and the other being “an intent to undermine the interests of others.” In particular, with respect to the “intent to undermine the interests of others,” since the actor intends to cause damage to others, this is absolutely different from the meaning of the “intent to profit.” This shows that the legislators did not completely exclude the culpability of personal data violation “without an intent to profit.” Moreover, Article 1 of the Personal Data Protection Law shows that the legislative objectives are originally to “regulate the collection, processing and use of personal data to avoid violation of personality right and to promote the reasonable use of personal data.”
Therefore, it should be noted that “intent to undermine the interests of others” set forth in Article 41 of the new law is not limited to property interests. In addition, although the meaning of the “interests” in the “intent to pursue the illegal interests of the actor or any third party” cannot be ascertained in the history of legislation, still since Article 41 of the new law is derived from the provisions of Article 41, Paragraph 2 of the old law, and the same statutory criminal punishment under such paragraph is maintained, the “interests” in the “intent to pursue the illegal interests of the actor or for any third party” under Article 41 of the new law should certainly be limited to property interests in reference to the gist of Article 41, Paragraph 2 of the old law, which is preconditioned by an “intent to profit.” In addition, using “the intent to pursue the illegal interests of the actor or any third party” as a constituting criterion of a crime in the legal regime of Taiwan is quite common in property or economic crimes. Therefore, such “interests” are obviously limited to property interests. Since Article 41 of the new law uses the “intent to pursue the illegal interests of the actor or any third party” as the constituting criterion of the crime, the same interpretation should apply in terms of the interpretation of its literal meaning.
Therefore, according to this Ruling, the “intent to pursue the illegal interests of the actor or any third party” within the meaning of Article 41 of the new law should be limited to property interests in view of the amendment process of Article 41 of the new law or of the legal regime of Taiwan. As to the “interests” in “damage to the interests of others,” they are not limited to property interests.
For further information, please contact:
Emily Chueh, Lee Tsai & Partners
lawtec@leetsai.com
