Japanese Law and Social Media
Ruben E. Rodriguez Samudio
(March 10, 2023)
I. Introduction
Since the 1990s, Japan has had a very active internet community. A 2002 report by the Ministry of Public Management, Home Affairs, Posts and Telecommunications (2002) (now Ministry of Internal Affairs and Communications) describes how Japan had an internet penetration rate of over 60% for household users and an outstanding 97% for enterprises. Japan’s mobile device use differs from its western counterparts. Negishi (2003) explains that in 1995 PHS (Personal Handy Phone System) was introduced to provide affordable mobile phone access using ISDN networks. It included some online features, which made it popular with high school students. In 1999, the “i-mode” service allowed internet access to websites and emails from phones developed and operated by NTT DoCoMo. Hence, when the first smartphones arrived in Japan in 2008 using 3G connections, there was already an established net culture and etiquette for online communication.
This new online culture also brought forth new issues. Anonymity is a required element for many essential activities, e.g., voting. Unfortunately, anonymity also reveals undesirable aspects of the human psyche. The effect anonymity has on human interactions is not unique to online media; U.S. host and comedian Johnny Carson experienced such effects in the 1970s (Tynan, 1978). Scholarship on the impact of anonymity on online communications can be traced back to the early 2000s when John Suler (2004) described the “Online Disinhibition Effect.”
Japanese netizens are not exempt from the influence of anonymity. Matsuo and Yamada (2019) explain how defamation cases soon became an issue in online forums. By the time online forums became popular, Japan had robust legal doctrines governing criminal (article 230 of the criminal code) and civil defamation cases (article 710 of the civil code). Nevertheless, some issues were not explicitly regulated by statute, so the courts began to adopt previous case law to address new technologies.
One such issue was the possible liability of internet service providers. In response, the government passed the “Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders” (Provider Liability Act, PLA) in 2001. The PLA shields providers from liability caused by users’ acts and establishes a special procedure to demand the disclosure of users’ (senders under the act) information to seek legal remedy.
In contrast to defamation, the Japanese civil code does not expressly protects privacy. Instead, it was first recognized via case law in 1964, resulting in the rapid development of legal doctrines via case law regulating the matter. Statutory wise, 1988 saw the enactment of the “Act on the Protection of Personal Information Pertaining to Electronic Data Processing Held by Administrative Organs,” later revised by the “Act on the Protection of Personal Information Held by Administrative Organs” in 2003. Likewise, the “Act on the Protection of Personal Information” was passed in the same year.
Even with statutory measures and an ever-growing body of case law, Japanese law still faces challenges when dealing with defamation or privacy infringement cases over the internet.
Ⅱ. Defamation and Social Media
Japanese civil defamation law protects two legal interests (Rodriguez Samudio, The Price of a Tweet Defamation and Social Media in Japan, 2022): an individual’s social standing (shakai meiyo) and a self-perceived sense of honor (meiyo kanjō). Shakai Meiyo covers “statements” that lower the plaintiff’s social standing, meiyo kanjo protects their emotional interests. While the Japanese civil code explicitly lists honor as a non-economic interest (article 710), it does not set any rules regarding claims for defamation. By contrast, article 230 of the criminal code, which regulates criminal defamation, requires the “statement” to be public. Furthermore, article 230-2 of the criminal code provides defendants with certain defenses against defamation when the statements were made for the public good or refer to the act of public officials.
Due to the lack of rules in the civil code, Japanese courts used criminal law to address defamation cases. Thus, courts began requiring the defendant’s statements to be public or communicable. In addition, case law has long required that defendants’ statements or comments lower the plaintiff’s social standing, with one of the first cases dating back to 1906. Whether the plaintiff’s social standing has been affected is a question of fact. Courts use a “general public” doctrine when determining if the defendant’s words are defamatory, adapting it to the media at hand. Thus, case law approaches the issue from the perspective of an “ordinary reader” (1959) or “ordinary viewer” (2003).
In addition, courts have developed three defenses against defamation claims. The first one, usually translated as the truth defense (shinjitsu soto-sei no hori), was recognized in 1966 and is available to all defendants. However, it differs from common and continental law in the fact that it is not absolute. Instead, the defendant’s comment must be true and also benefit the “public good.” The second defense is known as the fair comment defense (kosei-na ronpyo no hori), and bars liability when the plaintiff is a public figure and the comments refer to the public interest. Lastly, the counter-speech defense (taiko genron or genron no taio) protects defendants when their words are used in response and are proportionate to the plaintiff’s statements.
In 2003, the Supreme Court adopted the general public doctrine to include website users, creating the “ordinary user” doctrine. Even though it originally referred to website browsers, courts currently use it to refer to social media users. Social media services, such as Twitter, pose a challenge to traditional defamation rules. On the one hand, courts have repeatedly found that tweets can be defamatory. There are, however, divided opinions regarding some functions, such as likes and retweets. For example, courts (2014) have found that “liking” a tweet was a mere expression of support and thus did not meet the criteria for defamation.
By contrast, case law has adopted the opposite position regarding retweets, with one court (2015) granting damages for a retweet are a separate form of expression that “quotes” the original tweet and thus can be considered defamatory. In another case (2020), the court held the defendant liable for retweeting a post that accused the plaintiff, a former politician, and even had a link to a newspaper reporting the incident.
Matsuo and Yamada (2019) note that courts are reluctant to grand remedy cases where the comments or statements were made in the “heat of the moment.” Due to online discourse’s interactive and organic nature, particularly over social media, courts are more likely to consider all the elements of a particular interaction when determining liability. This means that heated exchanges over an online forum like Twitter will not likely grant a user a claim for damages unless they allege specific facts. Likewise, the defendants have an easier time invoking the counter-speech defense than other types of communications.
The Supreme Court (2010) has ruled that for insults to be actionable, the defendant’s word must surpass socially accepted levels. In that particular case, the court held that the word “crazy” (kichigai) by itself was not enough to order the ISP to reveal the user’s information to the plaintiff. Insults are not limited to words. Therefore, defendants have been found liable for publishing illustrations or basing comic characters on real people if the depiction surpasses socially accepted levels.
There is, however, an increasing number of cyberbullying incidents, particularly among Japanese youth, with reported cases increasing from 7855 in 2012 to 21,900 in 2021 (Statista, 2022). While insults are not traditionally considered to lower social standing, they do affect the victim’s emotional well-being (meiyo kanjo); thus, victims might be able to claim damages. Moreover, in 2020, the suicide of a young female pro-wrestler led to a social outcry that resulted in stricter criminal punishments for insults and a reform of the PLA that would allow victims to obtain user information more expediently.
Ⅲ. Privacy on social media platforms
Japanese law and scholars tend to group privacy and defamation when examining cases (Rodriguez Samudio, 2022b). According to Mizuno (2017), under Japanese law, privacy protects against disturbances to one’s private life, the publication of one’s private matters, and the collection, use, and transfer of personal information. The first right is the most straightforward, as it protects against unlawful intrusions of an individual’s private sphere, such as invading their home or other private spaces (Rodriguez Samudio, 2022b).
Regarding infringement over social media, the latter two are much more common. Publishing personal information, such as the name, address, or any other private matters, has long been regarded as privacy infringement regardless of the medium. These types of information are protected by statute, and therefore, their publication is usually considered an infringement per se.
By contrast, there is an issue when users themselves reveal their private information. Traditionally, once the individual publicly reveals a piece of information, it ceases to be private. However, if the information was revealed in confidence or to a small number of people and it is evident that such information is private, courts will consider any use or publication a privacy infringement. A clear example is private conversations over messaging applications. Usually, whether screenshots of these conversations constitute, privacy infringement will depend on three criteria. The first is whether the exchange was private or confidential. For example, messages via Twitter are unlikely to be considered private, but D.M. and other personal communications are protected.
Second, the message content includes personal matters. As a general rule, any information the individual would not like to have published would fall within this category. In recent years, there has been discussion regarding publishing private conversations of public figures, particularly celebrities. For example, in 2016, it was reported that a female star was having an affair with a married artist. During the following days, various media and T.V. outlets published screenshots of their private conversations. At the time, there were discussions on whether publishing the screenshots infringed upon their privacy, in what is traditionally a balance between freedom of the press and privacy rights.
However, there is also a cultural aspect to these cases. Traditionally, Japanese celebrities’ private life is heavily scrutinized, particularly idols. In the case of a scandal, the parties are more concentrated on apologizing and saving face than on their available legal remedies. Thus, carrier-wise, it is usually better for them to let the news die out than to sue for privacy infringement.
The last element, publication, is similar to defamation law in that the information must be “published” or “revealed.” Therefore, sending a screenshot to one person is unlikely to lead to damages, but posting it on social media will likely make the defendant liable.
Recently, two cases, one in Tokyo in 2021 and one by the Intellectual Property High Court in 2002, found that tweets were copyrightable and that posting screenshots of another user’s tweets was grounds for ordering ISPs to reveal the poster’s information under a PLA request. However, it is still too early to comment on whether this will be the approach adopted by other courts.
Ⅳ. References
Matsuo, T., & Yamada, Y. (2019). 最新判例に見るインターネット上の名誉毀損の理論と実務. 勁草書房.
Ministry of Public Management, Home Affairs, Posts and Telecommunications. (2002). Information and Communications in Japan. Ministry of Public Management, Home Affairs, Posts and Telecommunications.
Mizuno, K. (2017). 名誉毀損・プライバシー侵害等. In 新注釈民法（15） — 債権(8) 697条～711条 事務管理・不当利得・不法行為(1).
Negishi, M. (2003). Development of Mobile Phone Culture in Japan and Its Implications to Library Services: Prospecting Information Services in Coming “Ubiquitous Society”. NII Journal, 6, 57-67.
Rodriguez Samudio, R. (2022). The Price of a Tweet Defamation and Social Media in Japan. Journal of Japanese Law, 27(53), 71-107.
Rodriguez Samudio, R. (2022b). Non-Economic Losses under Japanese Law from a Comparative Law Perspective（2）. The Hokkaido Law Review, 73(3), 17-95.
Statista. (2022, 11 17). Number of Cyberbullying Incidents Among Students Reported by Schools in Japan from Fiscal Year 2012 to 2021. Retrieved from Statista: https://www.statista.com/statistics/1226684/japan-number-reported-cyberbullying-cases-schools/
Suler, J. (2004). The Online Disinhibition Effect. CyberPsychology & Behavior, 7(3), 321–326. doi:https://doi.org/10.1089/1094931041291295
Tynan, K. (1978, 2 28). Fifteen Years of the Salto Mortale. The New Yorker. Retrieved from https://www.newyorker.com/magazine/1978/02/20/fifteen-years-salto-mortale
Ⅴ. Case Law
Imperial Court, 19 February 1906. Westlaw Japan id: 1906WLJPCA02196001.
Tokyo District Court, 9 September 1964. Westlaw Japan id: 1964WLJPCA09280002.
Supreme Court, 23 June 1966. Westlaw Japan id: 1966WLJPCA06230001.
Supreme Court, 16 October 2003. Westlaw Japan id: 2003WLJPCA10160001.
Supreme Court, 13 April 2010. Westlaw Japan id: 2010WLJPCA04139003.
Tokyo District Court, 20 March 2014. Westlaw Japan id: 2014WLJPCA03208009.
Tokyo District Court, 25 November 2015. Westlaw Japan id: 2015WLJPCA11258016.
Osaka High Court, 23 June 2020. Westlaw Japan id: 2020WLJPCA06239004.
Tokyo District Court, 10 December 2021. Westlaw Japan id: 2021WLJPCA12109003.
Intellectual Property High Court, 2 November 2022. Westlaw Japan id: 2022WLJPCA11029001.
