You will be punished for posting an immigration advertisement without submitting it for review! The Constitutional Court ruled that the regulations are unconstitutional and will become invalid with immediate effect.

Fuyu Liyue International Co., Ltd. was fined NT$30,000 by the Ministry of the Interior in accordance with the Immigration and Immigration Law for publishing information on Hong Kong and Macao immigration and investment immigration on its official website without first obtaining advertising review and confirmation. After Fuyu filed an administrative lawsuit, the presiding judge Lin Jingchao believed that immigration advertisements must be reviewed by a designated group before being published, which involves "prior review" and may violate the constitutional protection of freedom of speech and the principle of proportionality, and requested a constitutional review. The Constitutional Court today declared that the relevant provisions are unconstitutional. It believes that it has excessively restricted freedom of speech and violated the principle of proportionality. It should become invalid from the date of the announcement of the judgment. It also invalidated and remanded the judgment No. 3 of the 2012 Beijing High-tech Industry Association.

The petition pointed out that the "Immigration and Immigration Act" stipulates that before publishing advertisements, immigration operators must review and obtain a confirmed trade name from a group designated by the Immigration Department. Otherwise, they will be fined 30,000 to 150,000 yuan, and may even be ordered to go out of business if they do not improve within the expiration date. Fuyu Company was fined 30,000 yuan by the Ministry of the Interior in 2021 for publishing "Investment in Taiwan Guide" and other Hong Kong and Macao immigration information on its official website without obtaining a reviewed trade name in advance. After the appeal was rejected, it filed an administrative lawsuit.

Judge Lin Jingchao, who is presiding over the case, believes that although immigration advertisements are commercial speech, the government can control them in order to prevent false advertising and protect consumer rights. However, the current system requires that advertisements be submitted for review before being published, and covers television, radio, newspapers, magazines, websites, and social media. It is a "prior review" that interferes with freedom of speech to a high degree. Even if the review is carried out by a designated immigration group, the relevant standards, procedures, and fees are regulated and supervised by the competent authorities. In essence, it is still the government's exercise of public power.

Lin Jingchao stated in the petition that the current system already has ex-post punishment mechanisms such as restrictions on the qualifications of immigrant operators and the abolition of licenses, and it should be considered whether there are alternative means that are less infringing on freedom of speech; and although protecting consumer rights and interests is of public interest, it is not enough to prove the need for prior review. There is a lack of direct and absolutely necessary connection between the provisions in dispute and the purpose, and no immediate judicial relief is provided. Therefore, he believes that it violates the principle of proportionality and the protection of freedom of speech, and petitions the Constitutional Court to declare it unconstitutional. In addition, Zhifu Immigration Consulting Company also encountered the same situation and filed for constitutional interpretation, and the Constitutional Court also heard the case.

The Constitutional Court held a press conference at 3 p.m. this afternoon. Xu Bihui, Director of the Constitutional Court Secretariat, and Wu Dingya, Director and Spokesperson of the Information and Rule of Law Promotion Department, explained the verdict at the scene. Xu Bihui explained that speech control can be divided into prior review and subsequent punishment. The former may directly prevent the publication of speech and cause major interference. According to the interpretation of the past Interpretation No. 744, it is unconstitutional in principle and should be subject to strict review.

Although the immigration group designated by the Immigration Department is responsible for reviewing advertisements in this case, the review is mandatory, and the immigration group is entrusted to exercise public power. The review standards are also set by the Immigration Department, and violators will be subject to penalties. Therefore, it is still a prior review of commercial speech by the government.

The Constitutional Court held that the main purpose of submitting immigration advertisements for review beforehand is to prevent consumers from being deceived by false advertisements. Although public interests are involved, consumers can still make their own judgments on whether to believe the advertisements. Even if they are deceived, the main damage is property damage, and it does not involve particularly important public interests such as life, body or health. Regarding national security risks such as fake marriages and human trafficking, the relevant agencies have not specifically proven the causal relationship with false immigration advertisements.

The Constitutional Court further pointed out that the Consumer Protection Act, the Fair Trade Act, etc. already have ex-post control measures such as civil liability, fines, and deadline improvements. Legislators can also regulate immigration advertising in a way that less infringes on freedom of speech. There is no reason why prior review must be adopted.

The Constitutional Court stated that the relevant provisions went beyond what was necessary, violated the principle of proportionality and the protection of freedom of speech, and were invalid from the date of announcement of the judgment. In addition, because the original judgment was determined to apply unconstitutional provisions, they were also discarded and sent back to the Taipei High Administrative Court's Higher Administrative Litigation Tribunal.