The online defamation maze: are we finding a way out?

Abstract

The main purpose of this paper is to examine the efficacy of the first decision that explored online defamation (as opposed to offline defamation) delivered by the Supreme Court of Japan. A discussion of the future implications of the case is then undertaken. The paper supports the First Instance (the Tokyo District Court) decision and its approach, and argues that such an approach might have provided greater implications for the future. The author also argues that the Tokyo District Court seems to have taken a more reflective view on the fluidity of online defamation and the nature of the online environment, and shows a degree of willingness to accept and incorporate such a nature. The author concludes that the Tokyo District Court's approach, although it could be seen as rather radical and extreme, seems to be more persuasive than that of the Supreme Court. It also submits that the court might have brought a more balanced and healthy outcome for the beneficiaries, including not only the claimants, the defendants, but also society as a whole. It is the case that innocent internet users can potentially be both the passive and active recipients of the information (i.e. comments posted on webpage). Before a detailed analysis and examination of the case is undertaken, a brief outline of how Japanese law and its jurisprudence have dealt with the traditional form of defamation (i.e. offline defamation) is provided as background.

Keywords:

• defamation
• cyber space
• Japan

Notes

The term ‘Web 2.0’ is applied to describe a second generation of the World Wide Web, which is focused on the ability for internet users to collaborate and share information online without facing any further technical complication.

The term ‘Web 3.0’ is explained as semantic web (or the meaning of data), personalisation (e.g. iGoogle), intelligent search and behavioural advertising, among other things.

See for example, Flanagan, A. 2005. Communications Law 10, no. 4: 125–129.

The recent onerous naming of Lord McAlpine on Twitter provides an exemplar of this.

Ra-men Franchisee. Supreme Court, Heisei 21(a) 360. The full text of the case in Japanese can be found at http://www.courts.go.jp/hanrei/pdf/20100317094900.pdf. [Accessed on 5 Februray 2013].

It should be noted that criminal sanction can be imposed for defamation by the Criminal Code of Japan. Article 231(1) of the Criminal Code, Act No. 45 of 1907 amended by Act No. 54 of 2007. The official English translation published by the Cabinet employs the term ‘Penal Code’ instead of the term ‘Criminal Code’. However this article applies the latter term throughout, since it seems more appropriate. Act No. 45 of 1907 amended by Act No. 54 of 2007. The full text of the Penal Code in English can be found at http://www.japaneselawtranslation.go.jp/law/detail/?printID=&ft=2&re=01&dn=1&yo=&kn%5B%5D=%E3%81%91&x=17&y=18&ky=&page=3&vm=02. [Accessed 2 December 2012.]

The Civil Code (Part I, II, and III). Act No. 89 of 1896 amended by Act No. 78 of 2006. The Civil Code is divided into two parts: the first consists of Part I, II, and III, the second consists of Part IV and V. The full text of the first part of the Civil Code in English is to be found at http://www.japaneselawtranslation.go.jp/law/detail/?printID=&ft=2&re=01&dn=1&yo=&kn%5B%5D=%E3%81%BF&x=11&y=21&ky=&page=7&vm=02. [Accessed 2 December 2012.]

Article 709 of the Civil Code of Japan.

See Article 710 of the Civil Code. Act No. 89 of 1896 amended by Act No. 78 of 2006.

Act No. 89 of 1896 amended by Act No. 78 of 2006.

Act No.137 of November 30, 2001. An English translation of the Act in full can be found at http://www.japaneselawtranslation.go.jp/law/detail/?ft=2&re=01&dn=1&yo=&kn[] = %E3%81%A8&x = 14&y = 6&ky = &page = 14. [Accessed on 2 December 2012.]

See Article 1 of the Act.

Nifty Forum. Appeal from the Tokyo District Court, Heisei 6(wa) 7784. Tokyo High Court, Heisei 9(ne) 2631.

Nifty Forum. The Tokyo District Court, Heisei 6(wa) 7784.

Nifty Forum. The Tokyo District Court, Heisei 6(wa) 7784.

Tsukuda, Katsuhiko. 2010. Meiyo Kison no Houritsu Jim. Tokyo: Kobun-do, at 124.

Nifty Forum. Tokyo High Court, Heisei 9(ne) 2631. The full text of the case in Japanese can be found at http://www.law.co.jp/cases/gendai2.htm. [Accessed on 2 December 2012.]

Toritsu Daigaku (Tokyo Metropolitan University). Tokyo District Court, Heisei 10(wa) 231717. The full text of the case in Japanese can be found at http://www.law.co.jp/cases/toritsudai.htm. [Accessed 2 December 2012.]

Toritsu Daigaku (Tokyo Metropolitan University). Tokyo District Court, Heisei 10(wa) 231717.

Dobutsu byoin v 2 channel. Tokyo High Court, Heisei 14(ne) 4083.

Act No.137 of November 30, 2001.

Kinshi Ganka. Tokyo District Court, Heisei 14(wa) 11665. Although an English translation of the case is not available, a full text of the case in Japanese can be found at http://www.law.co.jp/cases/kinshi.htm. [Accessed 2 December 2012.]

Article 2 provides definitions and Article 2(3) is set out as follows: ‘(3) The term “specified telecommunications service provider” means a person who relays others’ communications with the use of specified telecommunications facilities, or provides specified telecommunications facilities to be used for others' communications.'

No official translation of this case is available. The text provided has been translated by the author.

Article 4(1) of the ISPs Liability Limitation Act is set out as follows: any person alleging that his or her rights were infringed by distribution of information via specified telecommunications may, limited to cases when falling under both of the following items, demand a specified telecommunications service provider using specified telecommunications facilities for the operations of said specified telecommunications (hereinafter referred to as a ‘provider of disclosure-related service’) to disclose identification information of the sender pertaining to said infringement of the rights (referring to information, including a name and address, contributing to identifying the sender of the infringing information and which is as stipulated in the applicable MIC ordinance; hereinafter the same shall apply) possessed by said provider of disclosure-related service: (1) Where there is evidence that the rights of a person demanding said disclosure were infringed by the distribution of the infringing information. Kinshi Ganka. Tokyo District Court, Heisei 14(wa) 11665.

Article 723 of the Civil Code is as follows: ‘the court may, at the request of the victim, order a person who defamed others to effect appropriate measures for the reputation of the victim in lieu of, or in addition to, damages’.

Kinshi Ganka. Tokyo District Court, Heisei 14(wa) 11665.

Hasshinsya Jyoho Kaiji Seikyu. Supreme Court, Heisei 21(jyu) 609. An official English translation of this case is not available; an unofficial translation of this case is introduced by this author.

Note that in action against defamatory comments, criminal sanctions can be imposed as well as the civil sanctions.

The full details are discussed in Onishi, H. 2010. Japanese courts impose a limited scope of liability on ISPs for damages. Entertainment Law Review 21, no. 7: 287–289.

Act No.137 of November 30, 2001. An English translation of the Act in full can be found at http://www.japaneselawtranslation.go.jp/law/detail/?ft=2&re=01&dn=1&yo=&kn[] = %E3%81%A8&x = 14&y = 6&ky = &page = 14. [Accessed on 2 December 2012.]

Hasshinsya Jyoho Kaiji Seikyu. Supreme Court, Heisei 21(jyu) 609.

See Onishi, H. 2010. Japanese courts impose a limited scope of liability on ISPs for damages. Entertainment Law Review 21, no. 7: 287–289 at 288.

Ra-men Franchisee. Supreme Court, Heisei 21(a) 360.

Tokyo High Court, Heisei 20(u) 1067.