TAIWAN Law and Practice Contributed by: Che-Hung Chen, Doris Lu, Jakob Huang and Meng-Ying Lee, Chen & Lin Attorneys-at-Law
become increasingly prevalent. There is a grow - ing trend of data subjects, who suffer both pecu - niary and non-pecuniary damage, seeking com - pensation from the businesses responsible for the data breaches. The majority of courts held that the pecuniary damage suffered by the data subjects is a result of the fraudsters’ actions, not those of the business, and therefore, no cau - sation exists between the data breach and the pecuniary damage. However, some of them fur - ther held that the emotional distress suffered by the data subjects in the fraud event is linked to the business’s data breach, allowing data sub - jects to seek compensation for non-pecuniary damage. Overview of the Impact of Supranational/ International Developments on Domestic Litigation Taiwan courts apply the “reasonable expectation of privacy” standard originating from US law in privacy litigation Privacy rights are distinguished into two types: “freedom from intrusion into personal private life” and “the right to control personal data (ie, information privacy)”. According to decisions made by the Constitution Court, individuals are still protected by these freedoms even in pub - lic spaces, though their claim to “freedom from intrusion” is limited to situations where they have a reasonable expectation of privacy from oth - ers. Therefore, whether an individual has the “freedom from intrusion” in public spaces is assessed based on the “reasonable expecta - tion of privacy” standard, which originates from US law and is adopted and considered by the Taiwan court in privacy infringement cases. For example, in a case regarding violating park - ing rules, the key evidence is the record of the informant’s driving recorder recording the park - ing violation behaviour and the car information
of the claimant, and the claimant arguing such record infringed his privacy. The court adopted a “reasonable expectation of privacy” standard to determine whether a privacy infringement exist - ed. It provided that if data subjects drive their own vehicles in a public place, they are clearly disclosing their vehicles’ licence plate numbers to the general public, and the data subjects should be aware that the licence plate numbers can be easily linked to the vehicle owners, thus revealing their movements. Therefore, the data subjects do not have a subjective expectation of privacy regarding the licence plate num - bers or brief driving movements. However, if the recording was specifically used to monitor and record a specific individual’s movements for an extended period of time, the data sub - jects would still have a subjective expectation of privacy regarding their personal whereabouts. Nevertheless, even if the data subjects may hold a subjective expectation of privacy concerning their licence plate number or brief movements, as this personal data can be observed by the public with the naked eye and without the use of any technology, it is difficult to consider such an expectation as objectively reasonable. It is clear that the court assesses privacy infringement by reference to the “reasonable expectation of pri - vacy” standard. Right to be forgotten The “right to be forgotten”, as established by the European Court of Justice, has also been invoked by parties in Taiwan’s courts. (see 2.2 Recent Case Law for details). 2.2 Recent Case Law Case Regarding Right to be Forgotten A well-known case is one in which a former pro - fessional baseball CEO claimed the right to be forgotten and requested Google Inc. to remove search results related to his match-fixing scan -
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