Provider Liability Limitation Act
Guidelines Relating to Defamation and Privacy

First Edition: May 2002
Second Edition: October 2004
Third Edition: September 2011
Provider Liability Limitation Act Guidelines Review Council---Provider Liability Limitation Act Guidelines Relating to Defamation and Privacy
Contents
I
Purpose and Scope of Guidelines 1
I-1
Objectives of Guidelines 1
I-2
Positioning of Criteria for Guidelines1
I-3
Cases not Covered by the Application of the Guidelines2
I-4
Persons Covered by the Guidelines3
I-5
Way of Thinking Regarding the Provider Liability Limitation Act
3(1)
Limitation of Liability for Damages with Respect to Petitioners
3(2)
Limitation of Liability for Damages with Respect to Senders 4(3)
Response Based on Provider Liability Limitation Act
5II
Criteria for Determining Transmission Prevention Measures 6
II-1
General Remarks
6
II-2
Transmission Prevention Measures for Information that Infringes the Rights ofIndividuals (from standpoint of invasion of privacy) 8
II-2-1 Information Protected as Private 8II-2-2 Justifiable Cause for Noncompliance with the Law 8
II-2-3 Response to Information such as Names and Contact Information
8
II-2-4 Response to Information other than Names and Contact Information 12
II-2-5 Response to Photographs and Portraits, etc. 17
II-2-6 Response to Criminal Facts
22
II-3
Transmission Prevention Measures for Information that Infringes the Rights ofIndividuals (from standpoint of defamation)
25
II-3-1 Outcome of Defamation 251

II-3-2 Justification for Illegal Acts by Defamation
26
II-3-3 Fair Criticisms, etc.
28
II-4Transmission Prevention Measures for Information that Infringes the Rights ofCorporations and Other Juridical Persons 31
III
Response Procedures for Taking Transmission Prevention Measures 33
III-1
Acceptance of Petitions 33
III-2
Necessity of Voluntary Transmission Prevention Measures by Providers, etc.
33
III-3
Inquiry Process Procedures 34
III-4
Response to Requests to Delete Information from Human Rights Organs of the
Ministry of Justice37
III-5
Non-Transmission Prevention Measure Responses 38
IV
Reference Forms and Judicial Precedents, etc.
39
IV-1
Reference Forms 40
IV-2
Judicial Precedents in Relation to Communications Service Providers’ Liability
for Illegal Acts 44
IV-3
Human Rights Organs of the Ministry of Justice’s Process Leading to Requests
to Delete Information52
IV-4
List of Human Rights Organs of the Ministry of Justice53
IV-5
Summary of Judicial Precedents 55
p. 1-2
I
I-1

Purpose and Scope of Guidelines
Objectives of Guidelines

The objective of these Guidelines is to promote a prompt and appropriate response by
the provider, etc. and to promote the smooth and sound use of the Internet while
respecting the interests of each of the parties concerned, that is, petitioners, senders,and providers, etc., by clarifying the standards of behavior that should be taken by aspecified telecommunications service providers (hereinafter referred to as the “provider,etc.”) in cases where a request for transmission prevention measures has been received
from a petitioner whose reputation has been damaged or privacy has been infringed
following the distribution of information by specified telecommunications based on
article 3 of 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 (Act No. 137 of 2001, hereinafter referred to2

as the “Provider Liability Limitation Act” or simply the “Act”).
I-2

Positioning of Criteria for Guidelines

These Guidelines are practical guidelines to enable a prompt and appropriate responseby the provider, etc. through the clarification of standards of behavior to be taken by theprovider, etc. with respect to requests for transmission prevention measures frompersons, etc. who file petitions whose rights have been infringed (hereinafter referred tosimply as “petitioners, etc.”).
Consequently, these Guidelines find criteria on whether the response by the provider,etc. with respect to illegal information is appropriate in terms of “whether cases where
the provider, etc. has taken or has not taken transmission prevention measures fall underlimitations on liability for damages in accordance with article 3 of the Provider Liability
Limitation Act”, and are organized according to the following standpoint1) The kind of cases in which liability for damage is not incurred with respect topetitioners even if transmission prevention measures are not taken (article 3 paragraph(1) of the Act)
2) The kind of cases in which liability for damage is not incurred with respect to senders
in cases where transmission prevention measures have been taken in response torequests from petitioners, etc. (article 3 paragraph (2) of the Act)
Whether the provider’s, etc. liability for damages is limited by the Provider Liability
Limitation Act is ultimately decided by the courts, and whether certain information falls
under defamation or invasion of privacy and whether the provider, etc. incurs liability
for some action or inaction as a result differs depending on the information content, thecharacteristics of locations that have published information, and the way that the sender,
petitioner, or provider, etc. responds with respect to information, further, it is necessary
to consider that the criteria for determining defamation and invasion of privacy will also
vary according to changes in the social environment. Consequently, liability for damage
shall not always be incurred if the response is not made in accordance with these
Guidelines. Conversely, the provider, etc. shall not be absolved from liability fordamages even if the provider, etc. responds in accordance with these Guidelines.
These Guidelines have been drafted bearing in mind that they will be utilized to assist in
enabling the independent establishment of criteria for determining an autonomous

3response to information that falls under defamation and invasion of privacy1, eachprovider, etc. taking this into reference.
1
Furthermore, once formulated these Guidelines shall be revised continuously inaccordance with changes relating to honor and privacy following changes in the social
environment, information technology developments, and the practical operating
situation, etc.
I-3 Cases not Covered by the Application of the Guidelines
These Guidelines, as a general rule, do not treat matters that are not provided for in theProvider Liability Limitation Act. Note, however, that requests for a provider, etc. totake transmission prevention measures may be received even for matters not provided
for in the Provider Liability Limitation Act, and the way of thinking that assists suchdecision and background judicial precedents are introduced in chapter II, since theprovider, etc. must determine the illegality of transmitted information in order todetermine both (a) the kind of cases in which the provider, etc. shall be exempt due torelations with the sender even if transmission prevention measures are taken, and (b) the
kind of cases in which the provider, etc. shall be exempt due to relations with thepetitioner even if transmission prevention measures are not taken.
Additionally, the following kinds of matters are not provided for in the Provider
Liability Limitation Act1) Communication other than specified telecommunications (defamation, invasion ofprivacy, slander, etc. in electronic mail)(Note) These Guidelines only handle cases where information has been transmitted that
falls under defamation and the invasion of privacy, etc. in specified telecommunications(telecommunications made in a format that transmits information to unspecified persons
such as Internet web pages, and electronic bulletin boards, etc.; article 2 item (1) of theAct).

Defamation and invasion of privacy is a typical type of breach of law that occurs due
to slander via the Internet but there are also insults, damage to credibility, infringementof publicity rights, and other related types of breaches of law, and care is necessary as
the requirements for breach of law differ in each case.
142) Existence of criminal liability in relation to criminally illegal information(Note) The Provider Liability Limitation Act prescribes cases where a petitioner orsender is exempted with respect to civil liability (tort liability) in relation to informationthat infringes the rights of a specified person. For this reason, it is not possible todetermine the existence of criminal liability in relation to criminally illegal information2
based on these guidelines, and generally parties will not be accused of criminal liability
in cases exempted from civil liability.
23) Harmful information (information that are not illegal but that may be an issue
depending on the characteristics of the recipient. For example, violent or sexual
expressions that have a negative influence on the sound upbringing of young people,
etc.)

p. 3
I-4

Persons Covered by the Guidelines

These Guidelines have been drafted for providers, etc., namely, specified
telecommunications service providers referred to in the Provider Liability Limitation
Act.
Specified telecommunications service providers referred to in the Provider Liability
Limitation Act (article 2 item (3)) refers to providers, etc. that carry out web hosting, etc.
either commercially or non-commercially and persons that operate electronic bulletin

In addition to cases where the rights of specified persons have been infringed as withdefamation, damage to credibility, and insults, etc., criminally illegal information is not
limited to the rights of specified persons being infringed as with indecent images, the IDor passwords of others (Act on the Prohibition of Unauthorized Computer Access),child pornography (Act on Punishment of Activities Relating to Child Prostitution andChild Pornography, and the Protection of Children), or the dissemination of rumors(Commodity Exchange Act), etc.
Note, however, that while with indecent images and child pornography, the applicability
to crimes displaying indecent images, and crimes displaying child pornography is an
issue, conversely, there is a possibility of falling under civil defamation and invasion ofprivacy, etc., and these Guidelines apply to responses in such cases.

2

5

boards to which third parties can post freely. Consequently, not only
telecommunications business operators provided for in the Telecommunications
Business Act (Act No. 86 of 1984) but universities, local governments, and individuals,
etc. who manage electronic bulletin boards are also included. Consequently, we would
like even those providers, etc. who do not belong to organizations which constitute thiscouncil to refer to these Guidelines when establishing autonomous rules that respond to
the Provider Liability Limitation Act.
I-5

Way of Thinking Regarding the Provider Liability Limitation Act(1) Limitation of Liability for Damages with Respect to Petitioners
In the case of individuals, information that corresponds to defamation, invasion ofprivacy, insults, or infringements of portrait rights is conceivable as information subject
to requests for transmission prevention measures by the provider, etc., and informationthat corresponds to damage to credibility or the obstruction of business is conceivable inthe case of juridical persons.
In cases where such information is subject to a notice to take transmission prevention
measures such as deletion, etc., there is a possibility that the provider, etc. may be held
liable. In most judicial precedents, reasonable obligations on the provider, etc. to taketransmission prevention measures for the relevant information are recognized.
1) No continuous monitoring obligation
In cases where the rights of others have been infringed due the distribution of
information published on web pages or electronic bulletin boards, etc., when theprovider, etc. did not after all know that the relevant information was being distributed(irrespective of the reason for not knowing), even if the provider, etc. did not taketransmission prevention measures, they shall not incur liability for damages as a resultof having left the relevant information unattended due to the relationship with thepetitioner (article 3 paragraph (1), item (2) of the Act).
Put another way, the provider, etc. is not obliged to monitor whether information stored
on the servers they manage infringes the rights of others. If such an obligation exists,
information updated frequently on servers will need to be constantly monitored, which
is not just an enormous burden, but carries the likelihood that more information thannecessary will be deleted, etc. as the provider, etc. constantly checks information
uploaded to servers for fear of being accused of liability for negligence, and this may

6have a chilling effect with respect to “freedom of expression”. 3, 4

p. 4-5Additionally, the provider, etc. is not obligated to monitor new illegal acts that takeplace even in cases where, after taking transmission prevention measures, etc. once, thesame sender changes the file name, etc. and once again transmits information that
infringes the rights of others.
2) Limitation of liability in cases where requests for transmission prevention measures
have been received from petitioners, etc.
When a provider, etc. has been made aware of the distribution of information publishedon web pages or electronic bulletin boards, etc. in the wake of requests, etc. fortransmission prevention measures from petitioners, etc., even if the provider, etc. has
not taken transmission prevention measures, unless there are resultant “reasonablegrounds to find that said relevant service provider could know the infringement of therights of others (article 3 paragraph (1) item (2) of the Act)”, the provider, etc. shall notincur liability for damages due to having left the relevant information unaddressed inrelations with the petitioner.
Will refer to the kind of cases that can be referred to here as “reasonable grounds” inchapter II.
3) Technical potential of limiting liability

Ignoring information uploaded to servers and fulfilling the obligation to make a choicewith regard to the provider, etc. falls under censorship that is prohibited in article 3 of
the Telecommunications Business Act, and is a way of thinking that runs contrary to thespirit of prohibiting censorship provided for in article 21 paragraph 2 of theConstitution.
4
Shinichi Omura, Hiroyuki Osuga, Hiroshi Tanaka, “Outline of the Act on the
Limitation of Liability for Damages of Specified Telecommunications Service
Providers and the Right to Demand Disclosure of Identification Information of theSenders” NBL No. 730 (1 February 2002) page 30, etc.
37

According to the Provider Liability Limitation Act, even if a provider, etc. falls undereither article 3 paragraph (1) item (1) or item (2) of the Act, in cases where it is nottechnically possible to take transmission prevention measures, the provider, etc. cannot,
after all, be expected to take transmission prevention measures, and for this reason, shallnot incur liability for damages as a result of leaving relevant information unaddressedwith respect to the petitioner.
(2) Limitation of Liability for Damages with Respect to Senders
As far as the provider, etc. is concerned, there are many cases where it is difficult todetermine whether information subject to requests for transmission prevention measures
is illegal information that infringes the rights of others. Determining whether an
expression falls under defamation and invasion of privacy, etc. or is a legitimate
criticism is difficult, and the same expression may and may not fall under defamation indifferent times depending on circumstances unknown to the provider, etc. such aswhether the expression is true and the objective of the act of expression. Despite such an
extremely difficult decision being necessary, there is a possibility of a demand forcompensation for damages from the sender when information that does not infringe therights of others is mistakenly deleted. For this reason, providers, etc. fear being accusedof liability for damages by senders, and there is a risk for petitioners of damage
spreading if transmission prevention measures requests are unnecessarily left
unaddressed.
Accordingly, the Provider Liability Limitation Act sets forth that in cases where therequirements listed below ((1) or (2) and (3)) are fulfilled with respect to claims forcompensation for damage by senders5, the provider, etc. shall not incur liability fordamages with respect to senders.

Article 3 paragraph (2) item (1) of the Provider Liability Limitation Act is a provision
close to the “Good Samaritan theory” recognized in the US CDA (Communication
Decency Act and DMCA (Digital Millennium Copyright Act), etc. It is a way of
thinking that exempts or mitigates persons who attempt to help others out of good willfrom tort liability. Moreover article 3 paragraph (2) item (2) of the Provider Liability
Limitation Act is a provision in which the provider, etc. does not determine illegality,
and transmission prevention measures can be taken in cases where certain requirements(infringing information is sent to the sender, inquiries are made as to whether haveconsented to taking transmission prevention measures, and no objections are made by
the sender within seven days) are fulfilled.
58(1) Cases where there are sufficient reasonable grounds to believe that unjust
right-infringing has taken place (article 3 paragraph (2) item (1)) will refer to the kind ofcases where there are “reasonable grounds” in chapter II.
(2) Cases where a notice to satisfy certain requirements is made by the petitioner, and inwhich inquiry procedures as to whether a sender consents to transmission prevention
measures are undertaken and no notice to the effect that the sender does not consent to
the relevant transmission prevention measures is made within seven days of the date therelevant inquiry is received (hereinafter referred to as an “objection”) (article 3
paragraph 2 item (2)).
Inquiries are made with the sender when a notice that satisfies certain requirements thatrequests that transmission prevention measures be taken has been made.
(3) Necessary limits in transmission prevention measures
It is a requirement to take the minimum prevention measures required to block thetransmission of illegal information when taking transmission prevention measures withregard to defamatory or privacy invading, etc. posts.
What is to be considered as the minimum transmission prevention measures required is
an issue to be appropriately determined by the provider, etc. taking the content andurgency of infringing information, etc. and other relevant grounds into consideration.
If certain determination criteria are shown, in cases where it is possible to prevent
transmission by deleting illegal posts or suspending browsing by the public, acts inwhich only the relevant post is subject to deletion, etc. are considered to be theminimum required measures. However, in cases where information other than illegal
information (irrelevant information or information that cannot be said to be illegal butthat relates to illegal information) is included in files that exist in servers managed by
the provider, etc. (for example, the type of bulletin board to which multiple people post)
there are cases where other irrelevant information, etc. must also be deleted in order toprevent the transmission of illegal information due to it only being possible to delete,etc. relevant files in units. In such cases, it is conceivable that it will be difficult touniformly specify what kind of measures can be referred to as the minimum measure inwhich deleting the relevant file will be recognized as being a transmission prevention
measure, and individual specific decisions will be necessary.
9(3)Response Based on Provider Liability Limitation Act
In determining whether information is illegal, whether it is a case where liability fordamages is not incurred in relations with sender when implementing transmission
prevention measures, must be determined pursuant to article 3 paragraph (2) of theProvider Liability Limitation Act, and whether it is a case where liability for damages is
not incurred in relations with the petitioner when not implementing transmission
prevention measures is determined pursuant to article 3 paragraph (1) of the Provider
Liability Limitation Act.

p. 6-7
II

Criteria for Determining Transmission Prevention Measures

II-1
General Remarks(1) Structure of this chapter
Transmission prevention measures such as deleting, etc. due to falling under defamation
or invasion of privacy, etc. are often requested in information distribution through theInternet.
In these Guidelines, in cases where a provider, etc. who have received such requests
takes transmission prevention measures, cases when it is conceivable that liability fordamages will not be incurred with respect to the sender are illustratively enumerated
into two classifications, “invasion of privacy and defamation with respect toindividuals” and “damage to honor or credibility with respect to juridical persons”.
(Note, however, that, cases where information should not be deleted are also given as
illustrative examples as required).
(2) Response to requests to delete from Human Rights Organs of the Ministry of JusticeIn cases that fall under “incidents of serious violations of human rights” 6 anddefamation or invasion of privacy, etc., at Human Rights Organs of the Ministry of

Falls under “special incidents” pursuant to article 22 of the Rules for Conducting
Investigations into Human Rights Violation Incidents (2004, Instructions from the
Ministry of Justice No. 2) (meaning incidents requiring reports to or approval of, etc.
the head of the Civil Liberties Bureau and the head of the Audit and Legal Affairs
Bureau at each legal affairs bureau and district legal affairs bureau for thecommencement, conducting of investigations, and completion of relief procedures).

610

Justice, 7 requests 8 to delete relevant information on the Internet originating fromdeclarations, etc. from injured parties go to the provider, etc. If transmission prevention
measures are taken by a provider, etc. pursuant to such deletion requests, such cases will
fall under cases in which “there was a reasonable ground to believe that the rights ofothers were infringed without due cause” (article 3, paragraph (2) item (1) of the Act)and it is conceivable that there will be many cases where the sender’s liability fordamages in not incurred due to deletion by the provider.

In cases where a crime suspect is the injured party in human rights violations inparticular, there are cases in which attempting recovery and prevention of damage
themselves is acknowledged as being difficult given that they are being held as asuspect. In such cases, it is not possible to use inquiry procedures to the senderpursuant to article 3 paragraph (2) item (2) of the Provider Liability Limitation Act. In
this sense, it is possible to forestall the spread of damage resulting from illegal

Refers to the head of each legal affairs bureau and district legal affairs bureau. Note,however, that the head of the Civil Liberties Bureau may make requests to delete inview of the urgency or importance of the incident.
8Here requests to delete, under the Rules for Conducting Investigations into Human
Rights Violation Incidents, fall under “requests to take necessary measures with regard
to parties who are able to practically respond with regard to damage relief or prevention
due to human rights violations (request)” provided for in article 14 paragraph 1 item (1)[measures for cases where human rights infringement facts are recognized]. With
respect to this, in cases where the provisions of “mediation, legal advice, and otherassistance recognized as reasonable in relation to the introduction or legal aid forrelevant administrative organs or relevant public or private organizations with regard to
injured persons, etc.” provided for in article 13 item (1) of the Rules [Assistance, etc.
Measures] is recognized as sufficient, determine the necessity or propriety oftransmission prevention measures pursuant to generally determined criteria provided forin chapter II of these Guidelines due to the injured party making requests to deletetransmitted information directly to a provider, etc. based on assistance from Human
Rights Organs of the Ministry of Justice.
7

11

information distribution by promptly responding pursuant to these Guidelines.
Consequently, in cases where requests for transmission prevention measures arereceived from Human Rights Organs of the Ministry of Justice, having specified
necessary matters such as infringing information, etc., in accordance with procedures set
forth in these Guidelines, unless there are special reasons that deny “sufficientreasonable grounds to believe that the rights of others have been unjustly infringed”, thecourts are expected to determine that the provider, etc. is exempted from liability fordamages with respect to the sender when the provider, etc. has taken minimum
measures to prevent the transmission of relevant information with respect to theunspecified person based on the relevant request. Note, however, that the Council would
like it to be noted that not incurring liability for damages with respect to the sender as aresult of responding to requests for Human Rights Organs of the Ministry of Justice is
not always assured. (For example, cases in which abuse of public authority aresuspected, etc. such as requests to delete photographs that accuse scandals, etc.)
However, the Human Rights Organs of the Ministry of Justice carry out administrative
work in relation to the investigation and processing of human rights violation incidents,
and persons with specialist knowledge relating to human rights violations make requests
to delete as a result of adding careful reviews spanning multiple stages. Moreover,there are aspects that differ from reports from the general public in that reports are
based on certain determination criteria in relation to human rights protection, but evenin such cases, a provider, etc. is not obliged to take transmission prevention measures asa result. For example, when a provider, etc. has determined that there are no“sufficiently reasonable reasons to believe that the rights of others have been unjustly
infringed” and it has been determined that responding to requests to delete will result inbearing the sender’s liability for damages, the provider, etc. may not take transmission
prevention measures. Note, however, that in such cases, considering there are cases
where providers are not exempted from liability for damages from injured parties, etc.
(cases falling under article 3 paragraph (1) of the Act), the Council recommends that theprovider consult with a legal expert, e.g. an attorney when determining the need fortransmission prevention measures.
Additionally, with requests to delete any information by Human Rights Organs of the
Ministry of Justice, cases other than those in which defamation and invasion of privacy
covered by these Guidelines are possible, but in which expressions that are notobviously defamation or invasions of privacy, are not covered by these Guidelines.
(3) Criteria for determining providers’, etc. conduct guidelines
12

For the provider, etc. in principle, a response in line with these Guidelines is expected
and at present specified conduct guidelines are conceivable. Additionally, related
judicial precedents and theory trends are also stated as a commentary at the end of these
Guidelines but these should only be used as a reference since this is a field in which
future changes are likely.
In cases where transmission prevention measures are not taken with regard to
information shown below and information is left unaddressed despite a request to delete,etc. having been made, it is conceivable that there will be cases that fall under“sufficient reasonable grounds to recognize that it was possible, in relations with thepetitioner, to be aware that the rights of others had been infringed” as provided for inarticle 3 paragraph (1) item (2) of the Provider Liability Limitation Act.
Additionally, whereas article 3 paragraph (1) item (2) of the Provider Liability
Limitation Act prescribes cases where liability is limited with respect to the petitioner incases where transmission prevention measures are not taken, article 3 paragraph (2)item (1) prescribes cases where liability is limited with respect to the sender in cases
where transmission prevention measures are taken, and even though the phrase“reasonable grounds” is used in both cases, there is no mutual relationship and it isnecessary to determine each case separately.
p. 8-9
II-2.
Transmission Prevention Measures for Information that Infringes the Rights ofIndividuals (from standpoint of invasion of privacy)
II-2-1 Information Protected as Private
The judgment on 28 September 1964 issued by the Tokyo District Court, which has
become a leading case, that recognized tort with regard to the invasion of privacy (“after
the party” case, Judicial Precedent Summary 1), interprets that “information must be 1)
a private life fact or at risk of being construed as a private life fact, 2) recognizable as
being information the individual does not want to disclose to others from theperspective of the relevant individual taking the feelings of ordinary people as areference, and 3) not yet know to the general public” in order for information in relation
to individuals to be protected as private. These three requirements have been quoted
many times and have become well established in subsequent judicial precedents inrelation to invasions of privacy.
“Information at risk of being construed as a private life fact” provided for in 1) is
mentioned in the “After the Party” case in the sense that it applies if there is a risk that
ordinary readers will construe information as fact despite it being fiction, due to the13model novel having become an issue. It is sufficient to understand at a level at whichcases where ordinary people will not first construe information as fact (consider it to bemade up) are excluded.
Currently, the requirement provided in 2) is understood to be subject to legal protection
as not wanting to negligently disclose names and addresses to others is natural as is
described hereinafter, and coupled with the enactment of the Act on the Protection of
Personal Information, privacy protection targets have become more widely recognized.
With regard to the requirements provided for in 3) too, even if information has beenreported in one media, common awareness is often denied as publishing in anothermedia will result in new persons being aware of such information (readers or audience
differs for each media). Even in cases where information published in official
documents such as telephone directories or official gazettes, etc. is quoted or reprinted,
information may be subject to privacy protection depending on the media that publishes
such information and the publication circumstances.
Note, however, that facts relating to the work of professionals, such as public officials
and quasi public officials in particular, is often not subject to privacy protection due tonot being facts relating to their private lives.
II-2-2 Justifiable Cause for Noncompliance with the Law
In cases where even those facts concerning private lives that are subject to privacy
protection have been provided as material for determining the propriety and nature
thereof with regard to public officials, quasi public officials, and in particular persons inpublic office appointed through elections and candidates for such offices, andprofessionals, etc., the judgment will be no illegality when the content and method of
expression is not unjust in light of the objective. Further, with regard to news coverageof crimes, unless the content and method of expression is unjust, the judgment will be
no illegality if relating to a matter of public interest or of legitimate social interest(explained in full separately in II-2-6).
If parts of the private lives of distinguished persons could be of legitimate social
concern, and distinguished persons are understood to have abandoned their privacy to acertain extent in the process of choosing that kind of occupation or to become highprofile, then there may be times when disclosure of information relating to the field inwhich that person has become well-known will be judged as not being illegal.
II-2-3 Response to Information such as Names and Contact Information(1) Features of information such as names and contact information, etc.
14

Contact information such as names, addresses, and telephone numbers, etc. is basic
information that identifies individuals, and due to the nature of such information, it
tends to be understood as not being highly confidential, however, following disclosure
to the public and especially when disclosed through the Internet, it becomes informationthat people do not want to be disclosed to the general public due to the likelihood of
information being easily accessed by unknown third parties and with an apprehension ofinterruption in private and personal life.
(2) Cases of ordinary private individuals
Taking the following kind of response is conceivable when a request has been received
for transmission prevention measures for information such as the name and contact
information, etc. of ordinary private individuals.
1) As a general rule,9 when a request to delete, etc. has been made with regard to web
pages that publish names, work and home addresses, and telephone numbers, deletion ispossible in cases where a provider, etc. can delete information due to the extreme
likelihood that use of such relevant information will disturb private life peace.
(Additionally, in cases where the wrong number is stated as the telephone number andanother person’s number is stated, as a general rule such number will be deleted if arequest is made due to such act being harassment).

2) As a general rule deletion is possible in cases where the name, work and homeaddress and telephone numbers are stated in a collected form such as a list, etc.
3) As a general rule deletion is possible in cases where information that discloses names
is stated in cases in which a person only acts using a pseudonym on the Internet (cases
in which names and contact details are not published).
4) As a general rule deletion is also possible in the same way in cases where
information that discloses electronic mail addresses that are not published is stated.

As an exception with respect to the general rule, in cases which are not especially
urgent such as cases where published addresses or telephone numbers, etc. do not
actually exist and in which there is no possibility of harassment that disturbs private life
peace actually taking place, etc., it is conceivable that the sender will be informed of therequest to delete and the voluntarily deletion of information by the sender will be
encouraged.
915

(3) Cases of public officials10---10
As a general rule, when a request for transmission prevention measures for informationsuch as the name and contact information, etc. of public officials, etc. has been received,handling is the same as in cases of ordinary private individuals but taking the following
kind of response is conceivable considering the peculiarities of public officials, etc.
While there are many cases in which deletion is not necessary with regard to wellknown facts such as the duties and positions of public officials, etc. and addresses andtelephone numbers relating to such duties and positions, as a general rule it is desirable
that information not relating to duties and positions, etc. and that does not need to be
widely known, even in the case of public officials (for example their home address andtelephone number11), be handled in the same way as information on ordinary private“Public officials” means members of the Diet, prefectural heads, councilors, andother public officers who hold office, etc. Further, company representatives anddistinguished persons are also public officials due to having an official character that
corresponds to that of a “public official”. There are cases where such persons arerequested to tolerate disruption to private life peace to a certain extent in connection
with such duties, and consideration that differs to that of ordinary private individuals isnecessary. Additionally, in these Guidelines in addition to the above-mentioned “public
officials”, ordinary private individuals who are not public officials but who have official
positions such as company representatives, etc., and who have social influence arecategorized as “quasi public officials”, people who are simply distinguished or famous
are categorized as “distinguished persons”, and other ordinary private individuals are
categorized as “ordinary private individuals”.
11
Cannot to find a judicial precedent relating to the publishing of housing information
relating to public officials and quasi public officials. Decided to handle in the same way
as ordinary private individuals due to the risk of disrupting private life peace, includingthat of family members, such as harassment, if home addresses and telephone numbers
are published without permission. Note, however, that with regard to company
managers, as a general rule, handling in which the home of a company’s representative
director is not deleted is conceivable due to the home address of the representative
director being an essential item stated in commercial registers for juridical persons(obtainable by anyone at a legal affairs bureau).
1016

individuals.12

p. 10-14(4) Judicial precedents(4)-1 Outline
A Supreme Court judgment has also been issued with regard to cases where name andcontact information have been disclosed as a set, and in a lower court judicial precedent
too, being covered by privacy protection has been recognized, and there is nothing that
explicitly denies this. Whether publishing is tort and an obligation to compensate fordamage is incurred will ultimately be considered together with justifiable cause fornoncompliance with the law, but taking the following criteria into consideration asenshrined in the Supreme Court judgment, it should be considered difficult to legitimize
the release of the names and contact information of ordinary persons.
* The judgment issued by the Supreme Court on 12 September 2003 (Judicial Precedent
Summary 2), states “matriculation numbers, names, addresses, and telephone numbers
are simple information . . . to identify individuals; therefore, to this extent, thenecessity for concealment is not very high.” “However, even with respect to theaforementioned personal information, it is natural that a principal would not wantmore information than it is necessary to be disclosed to others whom the person would
not let know, and this expectation should be protected; therefore, the personal
information of this case should be legally protected as information concerning the
jokoku appellants' privacy”. Moreover, this judgment states, continuing on from theabove-mentioned ruling, that despite it having been easy for the university to obtainprior authorization, the university neglected to obtain authorization and disclosed
information to the police without permission which “contravene the rational expectationof the jokoku appellants that the voluntarily reported information concerning privacy

Conversely, it is conceivable that there will be few cases in which the legitimacy of
publishing the address of a distinguished person will be recognized.
12
It is conceivable that deleting will be possible if a provider, etc. can delete suchinformation, in cases where urgency is high, such as harassment that damages the peaceof the public official’s private lives actually occurring, etc., even if public officials’, etc.
contact information, etc. is widely known.
17will be adequately controlled and should be regarded as constituting tort due toinfringing the privacy of the appellants”, and “The circumstances that were mentioned
in the judgment of the second instance court including the degree of concealment,
non-existence of concrete disadvantages by disclosure, and justifiability and necessityof the purpose of disclosure are not sufficient to affect the above conclusion”. Based on
this judgment, the disclosure of private information such as the name and contact
information of ordinary private individuals will not be legitimized even if the legitimacy
and necessity of disclosure objectives are reasonable. However, in this judgment two of
the five judges stated an opposing opinion that high security needs of the seminar andlegitimate disclosure objectives are not grounds for tort (3:2 majority decision).
(4)-2 Cases of ordinary private individuals
In addition to the above-mentioned Supreme Court judgment, the following are lower
court judicial precedents with regard to information such as names and contact
information, etc. pertaining to ordinary private individuals.
1) Case in which a name and home address and telephone number were mistakenly
published in a telephone directory despite having refused publication (judgment issued
by the Tokyo District Court on 21 January 1998, Judicial Precedent Summary 3)2) Case in which the name of an employer and telephone number, which the name of
the apartment purchaser and individual concerned had indicated as wishing to keep
secret, was provided to the company due to act as the management company for the
relevant apartment building (judgment issued by the Tokyo District Court on 29 August
29 1990, Judicial Precedent Summary 4)3) Case in which the name, occupation, (employer’s) address and telephone number
published in a telephone directory (Town Pages) were disclosed on a bulletin board(linked to a pseudonym) (judgment issued by the Kobe District Court on 23 June 1999,
Judicial Precedent Summary 5)4) Case in which a university that organized a seminar provided the names, student ID
numbers, addresses and telephone number of seminar participants to the police(judgment issued by the Tokyo District Court on 11 April 2001, Judicial Precedent
Summary 6), and the court of second instance (judgment issued by the Tokyo High
Court on 16 January 2002, Judicial Precedent Summary 7), remanded theabove-mentioned Supreme Court judgment on the lawsuit in accordance with a separate
petition (judgment issued by the Tokyo High Court on 23 March 2004, Judicial
Precedent Summary 8)* The above-mentioned judicial precedent includes substantial evidence of the danger of18

disruption to private life peace by being contacted by an unknown person.
* In cases where employers’ addresses and telephone numbers published in telephone
directories are published in other media, such information is not common knowledge(not yet known to ordinary people) and care should be taken to ensure it is subject toprivacy protection (Judicial Precedent Summary 5).
Interest in a particular piece of information may decrease (note, however, that increased
interest in the site itself as being easy to use due to the accumulation of data is also
conceivable) with regard to cases where names and employers and home addresses are
published collectively in a list format, but given the list form, it is conceivable that suchsituations will not to be circumstances in which constituting tort is influenced.
* There is a judicial precedent that recognized tort with regard to the publishing of atelephone directory (judgment issued by the Tokyo District Court on 21 January 1998,
Judicial Precedent Summary 3).
Except in cases where the person involved in the crime is a public official, etc., a person
involved in crime should be treated as an private individual since publishing the workand home addresses of crime suspects or defendants, petitioners, and the family of such
persons is only justified in cases where such places are the scene of the crime, and it isconceivable that in most cases publishing telephone numbers will not be justifiable.
* With regard to a person involved in a crime, publishing the appellation of thesuspect’s wife’s employer was considered illegal given that, “the reason why news
coverage of crimes is generally of public interest is to have the general public recognizethat a criminal act or suspicion thereof has occurred, and given that it is conceivable thatcoverage satisfies warnings, prevention, and nuisance value from a social standpoint,
rather than permitting unrestricted indications and news coverage even if a matter
relating to the crime, the scope of facts permitted to be indicated should be limited tocrime facts and facts closely related thereto. Consequently, it is reasonable to construethat permitting indications and news coverage of facts in relation to the suspect’s family
in relation to a crime is limited to crime facts and closely related facts such as cases
where it is necessary in order to specify that relevant facts are crime facts, or cases
where it is particularly necessary in order to investigate the motive and cause of thecrime” (judgment issued by the Tokyo District Court on 4 April 1995, Judicial
Precedent Summary 9. Judgment issued by the Tokyo High Court, the court of second
instance, on 17 October 1995, Judicial Precedent Summary 10).
19

Considering that acting only under a pseudonym is an indication of the intention toconceal a name, that maintaining anonymity is a rule on bulletin boards, etc. in which aperson ordinarily acts under a pseudonym, and that acts that reveal the actual name of aperson acting under a pseudonym ordinarily take place when a person has been
antagonized on the Internet or is the subject of curiosity, then, judging from the flow oflower court judicial precedents so far, the possibility of treating as information not
wanting to be published on the basis of the sensitivity of reasonable persons is notalways thought to be negligible (Judicial Precedent Summary 5, Judicial Precedent
Summary 11).
With regard to electronic mail address too, given that the possibility that slanderous
electronic mail or unsolicited mail will be concentrated is not negligible, it can be
determined that the peace of private lives will be interrupted (Judicial Precedent
Summary 12).
(4)-3 Cases of distinguished persons* There have been a series of judgments that permitted the prohibition of publishcationof the home address and telephone number of a distinguished person or his family(relatives’ abode) (judgment issued by the Amagasaki Branch of the Kobe District
Court on 12 February 1997, Judicial Precedent Summary 13, judgment issued by the
Tokyo District Court on 23 June 1997, Judicial Precedent Summary 14, judgment
issued by the Tokyo District Court on 30 November 1998, Judicial Precedent Summary15), and in these judgments, although the interest consideration with the objective of
publication, etc. is indicated, it is conceivable that there will not be many cases where
the publication of the home of a distinguished person is recognized as legitimate.
II-2-4 Response to Information other than Names and Contact Information(1) Features of information other than names and contact information
It is conceivable that many of the cases in which requests to delete are made with regard
to information other than names and contact information are for so-called sensitive
information (information that should be handled with more care than normal e.g.
physical information, credit information, and other information the nature of which a
reasonable person wants to conceal).
In such cases, requests to protect due to privacy carry more weight but conversely, incases where such information is disclosed, there are many cases that resulting from
evaluation and criticism objectives with respect to the applicable person, and in cases
20where such applicable person is a public official, etc. request that should protect such
criticism start to be made.
(2) Cases of ordinary private individuals
When a request for transmission prevention measures for information other than names
and contact information for ordinary private individuals is received, as a general rule,deleting information is desirable since it is difficult to conceive of reasons that
legitimize the publication of sensitive information with regard to ordinary private
individuals. Naturally, there is also private information other than sensitive information
regarding ordinary private individuals and there are cases where, depending on thecircumstances, information will be determined as not being a target for the protection ofprivacy. However, if such decisions are included, and given that decisions by a provider,etc. will become even more complicated and that cases in which it is possible tolegitimize the release of private information to the public are considered extremely rarewith regard to ordinary private individuals, then as a general rule, private information
for which the individual concerned requests transmission prevention measures withrespect to ordinary private individuals shall be deleted.
In cases where private information other than names and contact information withregard to a specified individual (meaning information in relation to a living individualthat enables the identification of that specific individual through that described, etc. thatis included in the relevant information. For example, academic background, medical
history, performance, assets, thoughts and beliefs, previous convictions, social status,etc.) is stated, if the request to delete is from the private individual him or herself, andthe sender is informed of the request to delete, and if the sender does not voluntarily
delete information then the provider, etc. shall, as a general rule, delete the information
if it can be deleted.
If a request to delete is made by the individual him or herself or other parties concernedwith regard to that information relating to those involved in a crime that are “facts that
do not relate to crime facts” (for example, information in relation to the family of
persons involved in crime, etc.) and if the sender is informed of the request to delete,and if the sender does not voluntarily delete the information then the provider, etc. shall,
as a general rule, delete the information if it can be deleted.13

13

Facts not relating to a crime shall be handled in the same way as non-crime related21

---13
Additionally, in the case of information other than names and contact information, there
are often cases where in addition to the privacy standpoint, issues arise from thestandpoint of defamation, and thus it is always necessary to refer to defamation items.
(3) Cases of public officials
When a request for transmission prevention measures for information other than thenames and contact information of public officials, etc. is received, the following kind of
response is conceivable.
Cases exist with regard to public officials, etc. in which it is acceptable not to delete
information such as when information can be said to be “occupational facts”.
If a request to delete is made by the individual him or herself or other persons concernedwith regard to the “private life facts” of public officials, etc., and if the sender isinformed of the request to delete, and if the sender does not voluntarily delete
information then the person making the request to delete shall be informed of the
progress, and encouraged to voluntarily resolve the situation. Note, however, that there
are cases where the provider, etc. can delete information such as when the mode of
publication lacks dignity and is beyond endurance.14

private information even if not limited to facts in relation to the suspect’s family but
also facts in relation to the suspect him or herself, since the aforementioned judgment
issued by the Tokyo District Court on 14 April 1995, etc. did not recognize thelegitimacy of publications stating that “rather than permitting unrestricted indications
and news coverage even of matters relating to crimes, the scope of facts permitted to be
indicated should be limited to crime facts and facts closely related thereto”.
14
There are cases with regard to public officials and quasi public officials where thepublishing of that private information that is so-called sensitive information(information that should be handled with more care than normal. For example, physicalinformation, credit information, etc.) is justified due to the objective and necessity.
22

In judicial precedents, in cases with respect to public officials where materials fordetermining the propriety that such person holds a public office have been published,publication is virtually always justified (refer to judgment issued by the Supreme Court(Third Petty Bench) on 8 February 1994, Judicial Precedent Summary 16), and withrespect to quasi public officials, it may be determined that “there are cases that must be
tolerated” considering the objective and necessity of publication (refer to judgment
issued by the Tokyo District Court on 22 May1990, Judicial Precedent Summary 19).
Furthermore, there are also judicial precedents that justify the publication of information
on quasi public officials’ private lives as such expressions lack illegality, when
expressions have been made concerning matters of legitimate social interest and whensatisfied that the expression content and method is not unjust. In addition to such
judicial precedents, given that restricting is appropriate in cases where judgment iscomparatively obvious, the liability of a provider, etc. in cases where difficult factors
are involved in judgments, is to delete information in cases where illegality is evident
from the objective, necessity and expression method, and to recommend a response ofleaving it to voluntary resolution in cases that are not so clear.
Additionally, in the case of information other than names and contact information, there
are often cases where in addition to the privacy standpoint, issues arise from thestandpoint of defamation, and it is necessary to refer to defamation items.
(4) Judicial precedent(4)-1 Outline* It is conceivable that the judgment issued by the Third Petty Court of the Supreme
Court on 8 February 1994 (Judicial Precedent Summary 16) will be a reading case inrelation to previous convictions with respect to so-called sensitive information. This
judgment states that there are benefits which deserve legal protection with regard tofacts relating to previous convictions, etc. that are not published while avoiding theconcept of privacy, and having stated that “of course, in cases where historical or social
significance is acknowledged in publicizing the case itself given that facts relating to acertain person’s previous convictions, etc., do on the other hand, relate to matters thatshould be the target of social and public concern or criticism of a criminal case or acriminal trial, publicizing the real name of the person concerned cannot be said to beunacceptable”, (this part assumes that the previous conviction is not merely a private
life fact and that there is leeway for it not applying to other matters), “depending on thenature of that person’s social activities or the extent of their influence on society
23through such activities, it has to be said that there are cases in which the publicization offacts relating to said past convictions, etc. must be tolerated as a document that criticizes
or evaluates such social activities.”, “in cases where that person is someone of official
standing who is the subject of legitimate interest to society in general such as someone
who holds a public office who was appointed by election, or a candidate for public
office, etc., when facts relating to said past convictions, etc. have been published as
documents for determining the propriety, etc. of that person holding public office, thisshould not be referred to as being illegal.”, and “in cases where facts relating to theprevious convictions, etc. of a certain person are published in a work using his real
name, in order to determine the foregoing points, it should be necessary to consider boththe significant and necessity of using his real name in light of the objective and nature,etc. of such work”, and holds that “in conclusion, there are cases where the benefit of
not publicizing facts relating to previous convictions, etc, are worth legal protection
while at the same time, there are cases where such publication is permitted, and whether
publicizing facts relating to the previous convictions, etc. of a certain person in a work
using his real name constitutes tort should be determined not only on that person’s
subsequent living situation but also on the historical or social significance of the case in
itself, the importance of that person, the social activities and influence of that person,
together with the significance and the necessity of using his real name in the light of theobjective and nature of the work, and as a result, in cases where the legal benefit of not
publicizing facts concerning previous convictions, etc. are surpassed, it must be said
that it is possible to request compensation for mental anguish suffered by such
publication”.
(4)-2Cases of ordinary private individuals
It is conceivable that cases in which the publication of sensitive information relating toordinary private individuals is justified will be rare. However, it is not possible tounambiguously determine what kind of information falls under sensitive information,and from a provider’s, etc. viewpoint, it is difficult to determine how to divide private
information on ordinary private individuals into sensitive information and non-sensitive
information.
* For example, in the judgment on the model novel (judgment issued by the Tokyo
District Court on 19 May 1995, Judicial Precedent Summary 17), holds that “of matters
plaintiffs claim are invasions of privacy, the plaintiff’s academic background, maritalbackground and facts that the plaintiff is referred to by his wife’s name, the backgroundto the opening of Otuyama Clinic and property relations, and the background to the24birth, career, and marriage of plaintiff Hanako’s parents, cannot, in so far as the criteriaof the feelings of ordinary people, be acknowledged as matters that the plaintiff does notwant others to know, and thus should not correspond to infringements of privacy”.
However, given that the novel is a creation produced from the author’s artistic
imagination, and can be taken as fiction, issues of defamation and invasion of privacy
do not arise and the above-mentioned judgment holds that, from the standpoint that it
can be said to be obiter dictum, and that in cases where the crime suspect’s wife isannounced, even if her employer, age, home town, university, career, and personal
appearance, etc. are criteria for ordinary person’s sensitivity, she will not want suchinformation to be published and will experience pain (judgment issued by the Tokyo
District Court on 14 April 1995, Judicial Precedent Summary 9), and the scope ofprivacy protection, as ruled in the judgment issued by the Tokyo District Court
judgment on 19 May 1995, is thought to be much narrower than the sense of reasonable
persons, and there are risks of relying on this.

p. 15-16(4)-3 Cases of public officials* The above-mentioned judgment issued by the Third Petty Bench of the Supreme
Court on 8 February 1994 as an incident is a case of an ordinary person but mentions
the case of a public official.
* Further, while a judgment in a criminal case relating to defamation, the judgment
pronounced by the First Petty Bench of the Supreme Court on 16 April 1981 (Judicial
Precedent Summary 18) ruled that, with regard to “private life behavior” pertaining toscandals involving relations with the opposite sex, “even if behavior in the private lifeof ordinary private individuals, depending on the nature of the social activities involved
and the extent of the influence on society through such behavior, etc., it should beunderstood that there are cases that correspond to ‘matters of public interest’ as referred
to in article 230.2 of the Penal Code as materials for criticizing or evaluating withrespect to such social activities”. This judgment was able to legitimize the publicizationof private life behavior including scandals involving relations with the opposite sex due
to social influence with respect to quasi public officials.
* With respect to coordinating the privacy of quasi public official and freedom of
expression, the judgment issued by the Tokyo District Court on 22 May 1990 (Judicial
Precedent Summary 19) in relation to the news coverage of the hospitalization of thechairman of a leading consumer loans company, and the judgment issued by the Tokyo
25

High Court judgment on 18 July 2001 (Judicial Precedent Summary 20) with respect tothe reporting of details of budgetary expenditure in addition to earnings in an assumed
name of a full time director of an incorporated foundation, discusses comparative
weight citing various matters for consideration and is one typical pattern for
determining the state of other information with respect to public officials.
* The judgment issued by the Tokyo High Court on 31 August 2006 (Judicial Precedent
Summary 21) in the case in which compensation for damages was claimed on the
grounds of defamation and invasion of privacy following a lawsuit for acts of sexual
harassment during a physician’s medical examination in which the petitioner lost thecase (the physician won) and with regard to the holding of a press conference andsubsequent news articles, ruled that since an occupational act of a professional had
become an issue, the matter could not be attributed to personal territory and was not atarget for the protection of privacy.
* The judgment issued by the Tokyo District Court on 19 February 2004 (Judicial
Precedent Summary 22) in the case in which news coverage of visits to cabaret clubs by
a prominent attorney, who had appeared regularly in television programs, ruled that
there is legitimate social interest since a single element can question the credentials of aperson involved in social activities as a legal expert, and when the expression content
and method is not unjust in light of objectives, such act is not illegal and does notconstitute tort.
* When making decisions on quasi-public officials, great care should be taken withrespect to former public officials and prospective public officials.
The judgment issued by the Tokyo District Court on 5 October 2001 (Judicial Precedent
Summary 23) in the case in which the details, etc. of a marital dispute (judicial)
involving the former representative director of Recruit Co., Ltd. who was a defendant ina criminal case were reported, did not treat the person concerned as a public official
given that he had retired from Recruit at that time and was not engaged in activities as
an economist or public activities and did not have any influence with respect to society,and ruled that while a defendant in a criminal case, the news coverage content was
unrelated to the criminal case.
The judgment issued by the Tokyo High Court on 31 March 2004 (Judicial Precedent
Summary 24) in the case in which news coverage of the divorce of a member of apolitician’s family became an issue, did not treat the person concerned as a public
official since, even though the family of a prominent politician was involved, at a time
when that person had not indicated a desire to become a politician the person was no
more than a private individual.
26

* The publication of the private lives of distinguished persons other than facts relating
to general prominent areas is often treated as invasion of privacy tort. The judgment
issued by the Tokyo District Court on 29 February 2000 (Judicial Precedent Summary25) recognized tort for the invasion of privacy with respect to a professional soccer
player, and the judgment issued by the Tokyo High Court as the court of second
instance on 25 December 2000 (Judicial Precedent Summary 26) referred to the
judgment issued by the Tokyo District Court on 15 July 15 (Judicial Precedent
Summary 27) that recognized tort for the invasion of privacy with respect to the marital
relations, etc. of a prominent cartoonist.
* Facts professed by entertainers on television is an issue from a separate standpoint tothat of distinguished persons, namely it can lead to an issue of abandoning the right toprivacy.
The judgment issued by the Tokyo District Court on 31 March 2006 (Judicial Precedent
Summary 28) in a case in which a comedian professed on television and in publications
that he is not embarrassed that he likes pornographic videos and sometimes borrows
them, recognized that, while it should be understood that he had abandoned
confidentiality with respect to making private information public and that there is no
merit in legal protection, the facts he made public are within the scope of liking andfrequently purchasing pornographic videos, while those parts of reports that specified
the type of pornographic video purchased infringe the right to privacy as the specific
type of pornographic video he or she is interested in and purchased is highly
confidential and not public knowledge.

p. 17
II-2-5 Response to Photographs and Portraits, etc.
(1) Features of photographs and portraits, etc.15

The publishing of photographs and portraits, etc. is an issue from the standpoint of
portrait rights or privacy rights being moral rights, and in cases of photographs andportraits of distinguished persons and entertainers in particular, there are issues from thestandpoint of publicity rights being property rights. The latter by nature closely relates
more to copyright issues and there are judicial precedents that recognize privacy right
infringements as well as publicity right infringements with respect to identicalphotographs, and the issue of photographs and portraits, etc. will be covered here.
15

27

Even if photographs have been taken as if of appearances and conduct shown publicly,
there are also cases where locking a moment can give a different impression to reality,and even when that is not so, there are often cases in which the subject feels
uncomfortable or embarrassed about publication due to leaving a strong impression on
the viewer.
With portrait photographs there is a risk of use in crimes such as attacks or kidnapping.
Photographs that show certain conduct or states may, due to such content, infringe
privacy rights or damage someone’s reputation, and the publication of photographs
frequently increases the extent of the damage.
Conversely, in criticisms with respect to news coverage, specified individuals, or otherconduct, there is a reasonable chance that the publication of such photographs isnecessary or useful and such adjustments will be necessary.
(2)
Cases of ordinary private individuals
Taking the following kind of response is conceivable when a request has been received
for transmission prevention measures for photographs and portraits, etc. of ordinary
private individuals.
In the case of portrait photographs, etc. from which it is possible to identify the subject,
as a general rule, delete the photograph from the point of view of photograph content,
and publication status, in respect to photographs where it is obvious that the photographhas been taken without the individual’s consent. Note, however, that there are cases,
such as a) and b) below, where falling under privacy and portrait right infringements
immediately is conceivable if transmission prevention measures are not taken andphotographs are left unaddressed.
a) When appearing in only part of a crowd photograph taken to show the atmosphere ata resort, etc. and the photograph is not a close-up of any specific person.
b) When the publication of real names and portrait photographs, etc. such as
photographs of suspects in crime news coverage is in the public interest, and suchphotographs are published to serve the public interest.
Even with photographs for which it is thought that consent to take the photograph has
been obtained, there are many cases where it is possible to delete photographs(depicting a person in hospital or undergoing treatment) when individuals who have an
ordinary sense of shame find such photographs to be uncomfortable or feel mental
28

anguish at their publication.
Further, as a general rule, except in cases where it is reasonably possible to determinethat a guardian has given consent, it is possible to delete portrait photographs that canclearly be recognized as being of minors.16---16

p. 18-22(3) Cases of public officials
Taking the following kind of response is conceivable when a request has been received
for transmission prevention measures for photographs and portraits, etc. of public
officials, etc.
In the case of portrait photographs, etc. from which it is possible to identify the subject,with the exception of the following cases, from the point of view of photograph content
and publication status, it is possible to delete the photograph where it is obvious that thephotograph has been taken without the individual’s consent.
i) In cases where it is possible that there is legitimate social interest such as articles
published about the work of public officials, and when the means of publishing theMinors have the same rights as adults not to have their appearance or person
photographed and published without permission, and even in cases where the relevant
minor consents to being photographed, minors and juveniles in particular, cannot be
expected to appropriately determine whether any damage (including the danger of being
kidnapped, etc.) will arise from having their photograph published on web pages, etc.
Further, in the case of juveniles, it is difficult for the juvenile him or herself to safely
resolve the matter on their own in cases where actual damage has been caused.
Consequently, from the standpoint of protecting children, based on the need for consent
of guardians for acts that are detrimental to minors, when necessary in order to protect
the privacy of minors and to protect minors from the risk of kidnapping, etc., a provider,etc. may take voluntary transmission prevention measures with regard to photographs
for which is it conceivable that if the guardian is asked, they will not give additional
consent or confirmation to publish a photograph.

16

29

portrait photograph is reasonable.
ii) In cases where it is possible that there is legitimate social interest in articles thatpublish portrait photographs, etc., rather than unjustly attempting to use goodwill fromthe relevant distinguished person’s publicity with regard to portrait photographs of
distinguished persons (actors, singers, professional athletes, etc.), and when the meansof publishing the portrait photograph is reasonable.
(4) Judicial precedents(4)-1 Outline
Photographing and publishing an individual’s appearance or person without theirconsent is a violation of the provision of article 13 of the Constitution, and wastraditionally referred to as infringements of “portrait rights”, and liability for damages isincurred with tort.
The Supreme Court did not use the word “portrait rights” with regard to the publication
in a weekly magazine of photographs of the suspect and photographs of illustrations of
the suspect and defendant in the recent Wakayama curry incident during the trial andrecognized that “any person has a legally protected personal interest not to have his or
her appearance photographed without their permission”, “it is reasonable to construethat any person has a personal interest not to have photographs taken of his or her
appearance published without their permission”, “it is reasonable to construe that any
person has a personal interest not to have illustrations that depict his or her appearance
published without their permission”.
Additionally, the scope of consent with regard to the publishing of photographs, etc.
taken with consent has become an issue, and it is understood that consent not to covercases where published in a form the subject do not predict at the time taken or cases
where published at an unexpected time or in an unexpected media,* The judgment issued by the First Petty Bench of the Supreme Court on 10 November
2005 (Judicial Precedent Summary 29) having first established with regard to the takingof photographs that “any person has a legally protected personal interest not to havehis/her face or appearance photographed without good reason, and whether or not an actof photographing a person's face or appearance without consent should be deemed to bea tort should be determined by examining whether or not the photographed person's
personal interest has been injured beyond the tolerable limit in social life, while taking
various factors into consideration such as the photographed person's social status, the30photographed activity, the place, purpose, manner, and necessity of photographing”.
Subsequently, the judgments holds with regard to publication that, “it is reasonable toconstrue that any person has a personal interest not to have photographs taken of his or
her appearance published without their permission, and in cases where photographing
the appearance of someone, etc. is evaluated as illegal, then acts that publish thephotograph taken of such appearance, etc. should be understood to have illegality as
infringing the above-mentioned moral rights of the subject”. In these cases, publishingis concluded as being illegal due to have evaluated the photography as illegal, and therequirement for publication being illegal in cases where photography is legitimate,should be understood as not having been determined in this case. Finally the Supreme
Court, having established with regard to the publication of illustration (portraits) that “itis reasonable to construe that any person has a personal interest not to have illustrations
that depict his or her appearance published without their permission”, states that
illustrations, unlike photographs, reflect the author’s view or technique, viewers accept
illustrations on such assumption, and quietly drawing during ordinary court hearings isan act socially endorsed, but that the publication of illustrations of handcuffs and ropes
tied at the waist is insulting and illegal due to damaging feelings of dignity.
* While a criminal case, there is a Supreme Court judicial precedent that mentions “thefreedom of not having one’s face or appearance photographed without consent or
permission”, and judgments with respect to portrait rights had been made in this way
before the above-mentioned judgment issued by the First Petty Bench of the Supreme
Court on November 10, 2005, namely, “any person has the right not to have his/her faceor appearance photographed without consent or good reason. Putting aside whether thisis called “portrait rights”, at least, if a police officer, without good reason, hasphotographed a citizen's face or appearance, such an act is in violation of the purport ofarticle 13 of the Constitution and therefore it is unacceptable…when a police officer
takes a photograph out of necessity to investigate a crime, even if not only the offender
but also the face, etc. of a third party individual is included in the photograph, then thisis a case where photography is allowable (judgment issued by the Supreme Court on 24
December 1969 Judicial Precedent Summary 30). This judgment was also quoted as aprecedent for the personal interest of not being photographed without permission in theabove-mentioned judgment issued by the First Petty Bench of the Supreme Court
judgment on 10 November 2005.
* The judgment issued by the Tokyo District Court on 31 March 2006 (Judicial
Precedent Summary 28) with respect to an article that published surveillance video
images and named the subject stated that regardless of whether the relevant individual31was the subject him or herself, as with cases where portrait rights have been directly
infringed, personal rights has been infringed and recognized infringements of “personal
rights directly related to portrait rights” in cases where the reader is lead to believe that
it is the relevant individual when read together with the explanation, even in cases
where the identify of the person is not evident from the published photograph.
(4)-2Cases of ordinary private individuals
It is conceivable that the margin for justifying the photographing and publication of
portrait photographs without consent with respect to ordinary private individuals is
extremely narrow except in cases of crime news coverage.
There is a judicial precedent that concluded that there is absolutely no illegality inpublishing photographs taken with consent when photographs were taken by aprofessional photographer and the subject could predict that the photographs would be
published in a pictorial magazine (judgment issued by the Tokyo District Court on 8
August 1956, Judicial Precedent Summary 32) but generally, there are cases where theillegality of publishing even those photographs taken with consent is recognized, andconsiderably cautious decisions are required in determining the scope of such consent.

* The judgment issued by the Tokyo District Court on 27 September 2005 (Judicial
Precedent Summary 31) in a case in which a site set up to introduce Tokyo’s cuttingedge fashion took full-length photographs of ordinary private individuals walking alonga public road and published close up full-length photographs including faces, stated that“any person has a personal right not to have his or her face or appearance photographedand not to have portrait photographs taken published without permission as a private life
freedom ” and if taking photographs and publishing on sites is closely related to mattersin the public interest, and is carried out solely with public interest in mind, and if theway in which photographs are taken and published on sites is reasonable in light of suchobjective, then illegality is rejected, and the judgment ruled that unauthorized
photographs for the purpose of introducing fashion is not reasonable, and thatfull-length close-ups are not necessary, and publishing in a form that enables the subject
to be identified when publishing on the site lacks appropriateness.
* The judgment issued by the Tokyo District Court on 5 September 2001 (Judicial
Precedent Summary 33) relating to the republishing of photographs publishing in a
magazine of an announcer in a swimming costume during her university years ruled thateven if approval to published was given at the time of photographing, it is necessary to
32

obtain consent once again when republishing in a different media with different
objectives, in a different manner and a different time.
* The judgment issued by the Tokyo District Court on 14 April 2009 (Judicial
Precedent Summary 34) in a case in which a passing garbage truck driver, who had
hidden that he was a garbage truck driver from his friends, was interviewed live on
nation-wide television, demanded compensation, ruled that at a time when prejudice anda lack of understanding with respect to certain occupations remains and given social
circumstances that trigger discriminatory statements and bullying of children, being agarbage truck driver falls under privacy from the plaintiff’s perspective, and given thatthe plaintiff asked twice mid-way “will this be on television?” and the announcer
responded “err, um, we’ll consider, err, not broadcasting this”, the plaintiff had not
given approval for his face, etc. to be broadcasted on television, and recognized
portrait right infringements due to consent not having been given.
(4)-3 Cases of public officials
Portrait rights are often judged based on similar criteria for determining defamation, andare matters concerning public interest, and if published for public interest objectives andif the content published is reasonable, then it is often the case that illegality of
publication will be denied and liability for damages will not be incurred. Note, however,that unlike cases that determine the existence of justifiable cause for noncompliancewith the law from the standpoint of defamation, truth alone is generally said not to
excuse publication.
* The Sankei Weekly Magazine case (judgment issued by the Tokyo District Court on
27 February 1987. Judicial Precedent Summary 35) is an example of a judicial
precedent that recognized the rejection of illegality due to “being a matter relating to
public interest and being published for public interest objectives” in a case where thefacts indicated had credibility. Namely, with regard to an article published in the Sankei
Weekly Magazine concerning a private university professor (plaintiff) having sex withlocal women abroad on successive days as well as taking a percentage from prostitution,and published photographs of the plaintiff’s face, photographs of him fully naked
putting on underwear, and photographs of him on a bed playing with numerous women,
the photographs reinforced and clarified the article itself, and the article related to public
interest, was published with objectives solely in the public interest, and there is a casethat applied justifiable cause for noncompliance with the law in defamation that covers
public officials as illegality is lacking as a requirement for tort from the perspective of33

the purpose of publishing the photographs and the necessity and means, etc. thatrecognized that the facts indicated as being true for the most part.
* In a case in which pictures of the chairman of a leading consumer loans company in awheelchair were published, emphasis was placed on the fact that the chairman’s
appearance was photographed without permission while undergoing treatment in
hospital and conversely, photographs were judged as not being necessary for news
coverage of the illness, and taking photographs of the chairman sitting in a wheelchairin hospital was an illegal infringement of portrait rights and an invasion of privacy(judgment issued by the Tokyo District Court on 22 May 1990, Judicial Precedent
Summary 19).
(4)-4 Cases of celebreties such as actors, and professional sports, etc.
The existence of celebreties is similar to that of public officials and there is a way of
thinking in which celebreties can be said to have partly relinquished privacy rights,
given the assumption that portrait photographs are a matter of social interest, even if
portraits are used without permission such as the publication of portrait photographs,
etc., this differs from ordinary private individuals and falls under justifiable cause fornoncompliance with the law. Note, however, that in cases where celebreties attracting
customers is abused, it is necessary to consider recognizing publicity rights andcompensating for damages recognized.
Additionally, in the case of entertainers, there is a need to carefully judge the scope ofsuch consent even when consent for photographing and publication has been given oncewith regard to photographs of poses that are generally embarrassing.
* The judgment issued by the Tokyo High Court on 26 April 2006 (Judicial Precedent
Summary 36) with regard to the publication of photographs before debuting as an idol
personality and private life photographs, ruled that, having acknowledged an invasion ofprivacy as limiting privacy as far as an entertainer’s private life as being impossible torecognize depending to the way of thinking on legitimate society concerns, entertainers
make a status in which they can exclusively enjoy economic benefits of customer
attraction preparing portraits, etc. that function to express a unique reputation, social
valuation, and degree of familiarity, etc. into publicity rights, and “cases where others
use portraits that express such customer attractions according to a commercial method
without the permission of the relevant entertainer”, will be construed as publicity rights
infringement tort.
* The judgment issued by the Intellectual Property High Court on 27 August 200934

(Judicial Precedent Summary 37) in a case in which an entertainer’s photograph wasused in an article that advocated a way of dieting involving dancing to music, ruled thatsince distinguished persons are more likely to be of legitimate social interest thanordinary persons, use of their name and portrait is necessary for news coverage, reviews,
and the introduction of social phenomena, etc., and given the process in which a third
party publishes his or her name and portrait, etc., the extent of their prominence
amplifies and they establish a social status, the right of distinguished persons to
exclusively control their name and portrait is limited, and “whether the use of a
distinguished person’s name and portrait is illegal requires the capturing of thecorrelation as an interest comparison issue of the right of a distinguished person tocontrol their name and portrait and the guarantee of freedom of expression or theplanned burden permitted in the process that leads to such a socially prominent
existence, and the use and management method, etc. should comprehensively observeand judge the process of obtaining, reputation of the distinguished person, the extent towhich they are famous, and the name and portrait of the relevant distinguished personwith regard to the purpose, method, manner, and portrait photograph that uses theirname and portrait”, and the use of photographs in this case is to get people interested or
encourage people to memorize the dance and cannot be said to exceed the planned
burden permitted in the process of becoming a socially significant existence, and thus
infringement of publicity rights were denied.
* The judgment issued by the Tokyo District Court on 23 May 2006 (Judicial Precedent
Summary 38) in a case in which photographs taken of a former pornography actressduring her time as a pornography actress for publication in a weekly magazine,
photographs of her wearing underwear with her clothes undone taken to promote salesof the video, and images captured from videos were published together with a gossip
article, ruled that republishing of photographs taken for publication in a weekly
magazine could not be said to be unforeseeable and were approved, and use of images
captured from videos to introduce the video should be consented to by the performer butthat consent to the use of photographs taken to promote sales of the video and images
captured from videos, considered together with the content of photographs thatembarrass reasonable persons, stops at that scope, and publication in a weekly magazine
exceeds the scope of publicity for a video after retirement and goes beyond that consent
and was recognized to infringe portrait rights.
II-2-6

Response to Criminal Facts35

(1) Features of criminal facts (ordinary private individuals)
In cases where crimes are reported in the news using real names, mentioning therelevant news coverage in posts, etc. does not infringe rights, but if a long period oftime has elapsed after the crime and sentencing with respect to the offender has finished,bringing up crime facts could be right-infringing. It is difficult to illustrate the generalcriteria for the kind of cases for which it will be illegal (and how long a term has
elapsed).17---17(2) Crimes by juveniles, etc.
News coverage of crimes by juveniles that enables the offender to be identified isprohibited in article 61 of the Juvenile Act18 from the standpoint of rehabilitation. As ageneral rule the deleting of news coverage, etc. using real names is permitted.

(3) Crimes by public officials
The scope for permitting publication of crime facts in cases involving a person currently
holding public office or a candidate for public office is wide.
(4) Judicial precedents(4)-1 OutlineThat a crime has taken place is in itself a matter of legitimate social concern and thus,
except in cases of juvenile crimes, as a general rule, news coverage of real names

There are news organizations that are creating guidelines for the timing ofanonymizing information. Refer to “NHK’s ‘Rules for Protecting Moral Rights for
Databases Provided Externally’ – the significant and background to reviews”(Copyright August 2009 P.19)
18
Article 61 of the Juvenile Act provides that “No newspaper or other publication may
carry any article or photograph from which a person subject to a hearing and decision ofa family court, or against whom public prosecution has been instituted for a crimecommitted while a Juvenile, could be identified based on name, age, occupation,
residence, appearance, etc.”
1736

immediately after the crime is permitted. It is not illegal to mention such news coverage.
Note, however, that when a long period of time has elapsed since the crime andsentencing with respect to the offender has finished, bringing up crime facts could beright-infringing. The kind of cases specifically (depending on how long a term has
elapsed) that it will be illegal to bring up differs according to the nature and gravity of
the crime, and the characteristics of the offender, and are not easy to determine. In thecase of juvenile crime, there are instances in which news coverage using real names inlimited cases only will be permitted (as a general rule news coverage using real names
is illegal), and there are instances in which, weighing up the legal benefits of not
publishing against the grounds for publishing, only the former overriding the latter will
constitute a tort (whether news coverage using real names is illegal will varycase-by-case). The latter is the decision made by Supreme Court.

p. 23-24(4)-2 Cases of ordinary private individuals
There is a case in which a previous conviction for an injury 12 years earlier that was
taken up in a non-fiction book was considered right-infringing. The High Court
judgment in this case ruled that when a reasonable amount of time has elapsed since a
crime and the punishment with respect to the offender has been carried out, theninformation in relation to such previous conviction, as a general rule, should be handled
in the same way as undisclosed information and as information that is not of legitimatesocial interest, and unless there are special grounds, indicating and publishing crime
facts using real names shall be unacceptable due to being an infringement of privacy.
(Tokyo High Court 5 September 1989 “Reversal” case, Court of Second Instance
Judicial Precedent Summary 39)
The Supreme Court judgment in the above-mentioned “reversal” case, ruled thatwhether publicizing facts relating to a previous conviction using a real name constitutes
tort should be determined not only on that person’s subsequent living situation but also
on the historical or social significance of the case itself, the importance of that person,
the social activities and influence of that person, together with the significance and thenecessity of using his real name in the light of the objective and nature of the work
(judgment issued by the Supreme Court “Reversal” appeal hearing on 8 February 1994,
Judicial Precedent Summary 16).

37

There was a case in which stating the employer, age, place of birth, and career history of
the wife of a suspect arrested on suspicion of an indecent crime in a weekly magazine
was considered an illegal invasion of privacy. The judgment ruled that “permitting
indications and news coverage of facts in relation to the suspect’s family in relation tocrimes is limited to crime facts and closely related facts such as cases where it isnecessary in order to specify that relevant facts are crime facts, or cases where it isparticularly necessary in order to investigate the motive and cause of the crime”, and as
there were no such special circumstances, the article in the weekly magazine is illegal(judgment issued by the Tokyo District Court on 14 April 1995, Judicial Precedent
Summary 9).
(4)-2 Juvenile cases
There was a case in which whether the publishing of an article that stated the manner ofthe crime and personal history, etc. of the perpetrator, who was a juvenile at the time of
the crime, using a pseudonym similar to the perpetrator’s real name, was tort or not wascontested. The High Court judgment in this case confirmed that the news coverage wastort liability given that news coverage that infers real names is a violation of article 61of the Juvenile Act. It was held that illegality shall only be constituted in cases where
there are special circumstances such as when requests that evidently defend social
interests should be given strong precedence over the rights or legal interest of thejuvenile who should be protected (judgment issued by the Nagoya High Court on 29
June 2000 “Nagara River Lynch Mob Murder” case, court of second instance, Judicial
Precedent Summary 40)
The Supreme Court held in the above-mentioned “Nagara River Lynch Mob Murder”
case that news coverage of the case was not news coverage that inferred real names that
violates article 61 of the Juvenile Act, and quashed and sent back the original judgment.
Privacy infringements weight the legal interest of not publishing facts against the
grounds for publication. Given that cases where the former overrides the latter are a tort,
the legal interest of not publishing such facts as the age and social status at the time andthe relevant crime act details, that were published in an article in a weekly magazine,
the scope that information attributed to privacy information was transmitted as a resultof publishing such facts, and the extent of the actual damage suffered by the juveniles,
and the various circumstances in relation to the grounds for releasing such information
should be examined in detail separately and weighed and determined (judgment issued
by the Supreme Court on 14 March 2003 “Nagara River Lynch Mob Murder” case38

appeal hearing, Judicial Precedent Summary 41)(4)-3 Cases of public officials
There was a case in which a Metropolitan Assembly member’s claim for compensation
for damage was denied with regard to an incident in which a director of a metropolitan
hospital, having brought criminal charges for unlawful entry into a building against themember of the Tokyo Metropolitan Assembly who entered the hospital’s clinicallaboratory without permission from the manager and conducted an investigation in
relation to alcohol consumption in the hospital, published such facts on the hospital’s
website. The judgment construed that the charge was pertaining to a criminal act by anincumbent Metropolitan Assembly member and in view of the importance of theMetropolitan resident’s right of know, such information should by its nature beprovided widely to Metropolitan residents (Tokyo District Court 11 June 2008, Judicial
Precedent Summary 42).
There was a case concerning an obstetrician who broke into a women’s house in whicha request for a temporary injunction, in which the obstetrician made a request withrespect to a search service business operator for news coverage, etc. of the relevant
incident to be hidden in search results, was rejected. The ruling stated that only 18
months had elapsed since the incident, and that the court considered that the incident’s
influence on the local society and patient interest remained (judgment issued by the
Tokyo District Court on November 14 2008, Judicial Precedent Summary 43).
There was a case that denied tort with regard to news coverage that stated the actualname of a public junior high school teacher who was arrested for violation of theJuvenile Protection Ordinance. The judgment ruled that the detriment suffered by theappellant as a result of news coverage using his real name was great, and while it isnecessary to give adequate consideration to the legal interest of not publishing his actual
name, given the details of the alleged facts in which a junior high school teacher, who
was in a position of teaching and instructing young people, engaged in indecent actswith a female junior high school student, news coverage using his real name is highly
necessary since it is conceivable that specifying the suspect is of grave public concern
along with the details of the alleged facts (judgment issued by the Fukuoka High Court,
Naha Branch on 28 October 2008, Judicial Precedent Summary 44).
p. 25-26
39

II-3 Transmission Prevention Measures for Information that Infringes the Rights ofIndividuals (from standpoint of defamation)
II-3-1 Outcome of Defamation(1) Lowering social evaluations
Fame is an objective social evaluation received from society with regard to a person’s
personal value such as their character, virtue, and credibility, and tort is constituted
pursuant to article 709 of the Civil Code as defamation for acts that lower such social
evaluation and such acts are the target of compensation for damage (judgment issued by
the Third Petty Bench of the Supreme Court on 27 May 1997, Supreme Court Reports(civil cases) 51 No. 5 page 2024).19---19
With regard to defamation through expressions through the Internet, the situation issuch that it is possible to upload and transmit to electronic bulletin boards, etc.
messages that lower the social evaluations of others, and at the point in time at which
general users can read such message, dissemination is possible, and the social
evaluation of others will fall as a result, and thus the establishment of defamation isconceivable regardless of whether that person knew of the publication of the relevant
message.
Whether an expression lowers the social evaluation of someone should be determined

There is an example of a recent lower court judicial precedent that recognized tort as
falling under “insults” with regard to the infringement of feelings of fame that are notaccompanied by a decline in social evaluation (Tokyo District Court July 16 1990,
judicial precedent report No. 1380, page 116, etc.) and an example in which defamation
with respect to a deceased person is a feeling of the bereaved family’s respect andcherishing with respect to the deceased person and recognized tort as a type of moral
interest (Osaka District Court December 27 1989, judicial precedent report No 1342,
page 53). However, in the drafting stage for these Guidelines, it is difficult to present
general judgment criteria such as whether it falls under “insults” or whether it ispossible to say that moral interests as a feeling of respect and cherishing have been
infringed, and the guidelines can only handle representative examples of defamationthat recognize a lowering of social evaluations.

1940

based on the criteria of general readers’ ordinary observations and interpretations withregard to the relevant article (judgment issued by the Second Petty Bench of theSupreme Court on 20 July 1956, Supreme Court Reports (civil cases) Vol. 10 No. 8
page 1059).
* Amongst the judicial precedents, a judgment issued by the Tokyo District Court on
17 June 2002 (Judicial Precedent Summary 1) that denied defamation with regard to apolitician who was a member of the House of Representatives and a senior party
member, as a judicial precedent that denied the establishment of defamation as not
being possible to recognize the lowering of the plaintiff’s social evaluation enough toconstitute a defamation tort, and a judgment issued by the Tokyo District Court on 26
July 2004 (Judicial Precedent Summary 2) that denied defamation with regard to aformer Prime Minister and member of the House of Representatives.
(2) Specifying an Applicable Individual
Defamation is established with respect to a certain person in cases where the name of a
specified individual is not actually indicated but can be guessed by piecing together
other circumstances. There are a number of lower court judgments and the judgment
issued by the Tokyo District Court on 17 July 2003 (Judicial Precedent Summary 3) that
constituted tort due to defamation in a case where a defamatory remark was made using
an alias is a recent judicial precedent.
Defamation is not established with respect to people belonging to such group in cases
where the target is vague such as “people from XXX are sly”. The judgment issued by
the Tokyo District Court on 14 December 2007 (Judicial Precedent Summary 4) that
denied defamation by persons whose mother tongue is French or who were studying
French, etc. with regard to remarks that criticized the French language is a recent
judicial precedent. Note, however, that cases involving juridical persons are describedhereinafter.
II-3-2 Justification for Illegal Acts by Defamation(1) Requirements for Justification for Illegal Acts by Defamation
In cases where information that lowers the social evaluation of a specified individual
has been published on web pages, etc., there are cases where it is possible to delete
relevant information, but information is not to be deleted in cases where there is apossibility that the following three requirements will be satisfied-41a) The relevant information is a matter of public interest. For example, cases where
information is published relating to specified crimes and acts pursuant to status in social
lifeb) The publishing of relevant information does not aim to offend individuals but aims toserve the public interest. For example, cases where insulting expressions that extend to
personal insults that go beyond criticism with regard to criticisms in relation to a
specified individual do not fall under this requirement.
c) The relevant information is true or there are reasonable grounds sufficient to believethat the sender is sincere. For example, cases where it is obvious that the relevant
information is false, and where it cannot be said that there are reasonable grounds
sufficient for even the sender to believe that the information is true, do not satisfy thisrequirement.
From the standpoint of defamation, there are many cases that fall under justifiable cause
for noncompliance with the law, and it is conceivable that there will be many cases
where the grounds for a provider, etc. to be able to believe in “unjust right-infringing”
are poor since it is difficult for a provider, etc. to determine the public nature, publicbenefit, and credibility (or reasonability) required.
Additionally, from the standpoint of defamation, etc. even if there are cases where
deciding whether information is illegal is not possible, from a privacy and otherstandpoint, there are cases where rights can be said to have been infringed and thus
reviews from other standpoints are also necessary.
(2) Judicial precedents(2)-1 Outline
In cases 1) involving matters of public interest, 2) where the sole objective is to serve
the public interest, and 3) indicated facts have been proved to be as true, thenunlawfulness is lacking with regard to defamation and in cases where provisionallyindicated facts are not true but there are reasonable grounds for the person who acted tobelieve that the facts are true, then the act lacks intent or negligence and therefore, itdoes not constitute a tort (judgment issued by the First Petty Bench of the Supreme
Court on 23 June 1966, Supreme Court Reports (civil cases) Vol. 20 No. 5 page 1118).
Namely, it is the view of judicial precedents and popular opinion that even if social
evaluation has fallen, if the above-mentioned requirements of 1) or 3) are met, this does
not constitute a tort. (This is referred to as “doctrine of truth and appropriateness”)
42

In civil litigation in which tort based on defamation is the cause of the claim, liability
substantiated by the defense (burden of proof) is assumed, but, when providers make adecision on transmission prevention measures pursuant to the Provider Liability
Limitation Act, providers make judgments based on the fall in social evaluation(defamation) in conjunction with the requirements of above-mentioned 1) to 3).
Of these three requirements, “matters of public interest” signifies matters likely to beof ordinary interest as a member of democratic society, and can be paraphrased as“matters of legitimate social concern” (Minoru Takeda “Invasion of Privacy and Civil
Liability (expanded and revised edition)” (Hanreijihosha, 1998) page 298).

p. 27-28(2)-2 Matters of public interest (relates to criteria 1)
Whether a matter falls under a “matter of public interest” should be objectively
determined in light of the content and nature of the indicated facts themselves.
* As a general rules crimes prior to the institution of prosecution fall under matters of
public interest. The judgment issued by the Tokyo District Court on 26 October 1987
(Judicial Precedent Summary 5) is a judicial precedent in which the publication of anarticle that revealed the involvement of the JNR labor union in guerilla incidents such as
the disconnection of a railway signal cable was deemed to be a matter of public interest.
* As a general rule, the private life behavior of pure ordinary private individuals does
not fall under matters of public interest but, it has been ruled that “even if behavior in
the private life of ordinary private individuals, depending on the nature of the social
activities involved and the extent of the influence on society through such behavior, etc.,
it should be understood that there are cases that correspond to ‘matters of public
interest’ as referred to in article 230.2 of the Penal Code as materials for criticizing or
evaluating with respect to such social activities” (judgment in a criminal case, judgment
issued by the First Petty Bench of the Supreme Court on 16 April 1981, Supreme Court
Reports (criminal cases) Vol. 35, No. 3 page 84, similar rulings given in civil cases [forexample, Judgment of the Tokyo District Court on 28 August 2009, judicial precedenttimes No. 1316 page 202]), and the scope of social activities with regard to official
persons is deemed to fall under “matters of public interest”.
* In terms of judicial precedents, there is the judgment issued by the Tokyo District
Court on 15 February 1985 that ruled that an article in a weekly pictorial magazine thatreported a lover in relation to the murder of the chairman of Toyota Shoji was not a43matter of public interest (Judicial Precedent Summary 6), and the judgment issued by
the Tokyo District Court on 20 December 1990 that ruled that an article that reported
relations with the Los Angeles allegations incident was private life behavior and not amatter of public interest (Judicial Precedent Summary 7), and the judgment issued by
the Tokyo District Court on 28 August 2009 that ruled that an article that reported thatan entertainer who was formerly a member of an idol group had demanded solatiumfrom a man she had been dating was by its nature a private life behavior in that itconcerned a relationship between a man and a woman and behavior after the end ofsuch relationship and not a matter of public interest (Judicial Precedent Summary 8).
(2)-3 Objectives that serve the public interest (relates to criteria b)“Objectives that serve the public interest” means “whether an article is recognized as
something written or published based on public interest objectives, should not only be
determined according to that which is apparent from the outside such as the content andcontext of the article, but should be evaluated and judged as a whole, including
substantive relations that are not apparent from the outside”.
Namely, “objectives that serve the public interest” means “whether an article recognized
as something written or published based on public interest objectives, should not only
be determined according to that which is apparent from the outside such as the content
and context of the article, but collectively reviewing the method of expression, existenceof materials that serve as the basis, and the writing attitude with regard to the handlingthereof, and the issue of whether the article was appropriately sincere in being based on
public interest objectives, and, moreover, whatever the content and context of the article,
etc., whether any objectives linking to the denial of public interest exist, etc, forexample, to settle a personal grudge or to pursue self-interests, as a hidden ulterior
motive, should be evaluated and judged as a whole, including substantive relations thatare not apparent from on the outside”. (Note, however, that this is a judgment in acriminal case. Judgment issued by the Tokyo District Court on 10 June 1983, Reports ofPrecedents No. 1084 page 37.)
It is conceivable there will be cases where it is possible to determine the existence of“objectives that serve the public interest” comparatively easily from the content ofexpressions, etc. with regard to expressions via the Internet.
(2)-4 Truth and Appropriateness (relates to criteria c)
It is conceivable that there will be many cases where it is not possible to determine truth
and appropriateness from the standing of a provider, etc. and it is conceivable that a
44response can be taken if a case in which it is obvious that the relevant information isfalse, or it is evident that there are not sufficient reasonable grounds for the sender tobelieve the facts published on web pages, etc. to be true.
With regard to this aspect, it has been ruled that “information that is published on theInternet by individual users is not always regarded as less reliable information among
the audience, and when determining whether there were any reasonable grounds, there
is no reason to distinguish such case, without exception, from cases where an individual
uses other means of expression. Considering that information published on the Internet
can be viewed instantly by many and unspecified Internet users and it could damage
someone's reputation seriously in some cases, and that it is not easy to restore thereputation once damaged and it is not certain that such damaged reputation can be fully
recovered by making counterarguments on the Internet, in the case of an act ofexpression performed by an individual Internet user, similarly in other cases of
expression, it is appropriate to construe that the establishment of the crime ofdefamation is denied only when the person who performed the act can be found to have
had reasonable grounds, in light of reliable materials or evidence, for erroneously
believing the facts that he/she alleged to be true; it cannot be construed that theestablishment of this crime should be denied by applying less strict requirements.”(Note, however, that this is a judgment in a criminal case. Judgment issued by the First
Petty Bench of the Supreme Court on 15 May 2010, Supreme Court Reports (criminalcases) volume 64, No. 2 page 1, Judicial Precedent Summary 9).
II-3-3 Fair Criticisms, etc.
(1) Response to fair criticisms
It is possible to delete the relevant information in cases where insulting expressions that
extend to personal attacks exceeding such realm have been used for criticisms in
relation to specified individuals.
When an opinion or criticism has been manifested on the basis of a certain fact, when 1)
such act involves matters of public interest, 2) in cases where such objective is solely toserve the public interest, and 3) when facts that predicate opinions or criticisms havebeen certified as true for important aspects, or there are reasonable grounds to believethat the facts are true, then unless the scope extends beyond the realm of opinions or
criticisms such as extending to personal attacks, the act of the relevant criticism lacks
illegality (judgment issued by the Second Petty Bench of the Supreme Court on 24
45

April 24 1987, Supreme Court Reports (civil cases) Vol. 41 No. 3 page 490) judgment
issued by the First Petty Bench of the Supreme Court on 21 December 1989, Supreme
Court Reports (civil cases) Vol. 43 No. 12 page 2252, judgment issued by the Third
Petty Bench of the Supreme Court on 9 September 1997 Supreme Court Reports (civil
cases) Vol. 51 No. 8 page 3804).
p.29-32
Since exemption requirements differ with defamation indicating facts, classification of
the act of expression that has become an issue into the indication of facts or into
opinions or criticisms becomes an issue and, “when a part is charged for defamation,even where the said part of the article cannot immediately be construed, byunderstanding only the words and phrases used in such part in ordinary meanings, toassert specific matters concerning another person of which existence or non-existence
can be identified based on evidence or otherwise, if the said part of the article can beconstrued, by taking into account the context as well as the knowledge or experienceshared among ordinary readers at the time of publication of the article, to assert the said
matters indirectly or euphemistically by using rhetorical exaggeration or emphasis,using figurative expressions or employing a form of hearsay report of a third party or
inference, it is appropriate to regard the said part as alleging a fact. Further, if the said
part of the article avoids such an indirect citation but can be construed, by taking into
consideration the context and other relevant factors, to assert the said matters implicitly
as the basis for the statements in the said part, it is also appropriate to regard the said
part as alleging a fact.” (judgment issued by the Third Petty Bench of the Supreme
Court on 9 September 1997 Supreme Court Reports (civil cases) Vol. 51 No. 8 page3804).
* “Even when speculative forms of expressions are used in parts for which the outcomeof defamation has become an issue, based on the criteria of ordinary readers’ ordinary
care and reading of the relevant article, by taking into consideration the context before
and after the relevant part and the knowledge or experience, etc. of such readers at thetime of publication of the article, when it is construed that asserting as the result of such
speculation of specific matters relating to other who have evidence and can decide
existence, the said part, is also appropriate to regard the said part as alleging a fact.”(judgment issued by the Second Petty Bench of the Supreme Court on 30 January 1998,
Judicial Precedent Summary 11).
* Judicial precedents include a Tokyo District Court judgment on February 28, 1996
46

(Judicial Precedent Summary 10) that ruled that, with regard to a book that indicatedmistakes in examples sentences in a dictionary, overall the scope of criticism had been
exceeded, such as stating that the English language scholars and English reviewers whocompiled the dictionary are incompetent, and using extreme satirical, derisive, scornful,and contemptuous expressions in multiple places, a judgment issued by the Osaka High
Court on 26 December 2007 (Judicial Precedent Summary 12) ruled that a weekly
magazine article with the headline “stupid mayor” exceeded the scope of criticism thatthe mayor lacked the qualities to be a mayor, making expressions that the appellant
himself is a silly fool and given that remediation is not possible, the scope of opinions
and criticism was exceeded, a judgment issued by the Tokyo District Court on 29
January 2009 (Judicial Precedent Summary 13) ruled that the publishing of an article
that criticized a former legal advisor by a religious organization’s newsletter exceeded
the scope of opinion or criticism stating that “in addition to the appropriateness of theexpression itself with regard to whether an opinion or criticism exceeds such scope,should also determine the necessity of the relevant opinion or criticism. Should
determine the need for that mentioned above taking the background leading to theexpression of the relevant opinion or criticism, such as past behavior by the other person,
into consideration”.
(2) Judicial precedents in cases of disputes
Recently, a view prevails that attempts to restrict the establishment of defamation fromthe standpoint of antagonistic speech in cases such as disputes on an electronic bulletinboard (Kazuyuki Takahashi “PC Communication and Defamation”, Jurist No. 1120,
page 83 onwards, same, “Internet Defamation and Freedom of Expression”, edited by
Kazuyuki Takahashi and Shigeru Matsui, “Internet and the Law” [Version 4] (Yuhikaku,2010) page 53 onwards).
According to this view, in cases where objections of the injured party can be seen tohave an adequate effect, the risk of a fall in social evaluation cannot be recognized and
it is reasonable to conceive an understanding that honor or feelings of honor defamation
will not be established.
* Judgment issued by the Tokyo District Court on 27 August 2001 rejected the claimthat the injured party had made necessary and adequate objections stating that theirsocial evaluation had not been allowed to fall with regard to remarks on a PC
communications service (Judicial Precedent Summary 14).
* There is a judicial precedent that recognized defamation and insults even for acts ofexpression that took place during a dispute, with regard to “abusive content that47

emphasizes his or her opinion and refutes opposing opinions as not being necessary, notbeing appropriate expressions, using words that lack character…”judgment issued by
the Tokyo High Court on 5 September 2001, Reports of Precedents No. 1786 page 80).
* In recent judicial precedents care is necessary as prudent rulings continue in theapplication of the legal principal of opposing speech with regard to cases of unilateral
posting on Internet bulletin boards and websites.
* The judgment issued by the Tokyo High Court on 25 December 2002 (Judicial
Precedent Summary 15) ruled that “it goes without saying that it is desirable to resolve
verbal battles through speech, and this can first be said to happen when the assumption
is of those persons who will be able to exchange words on an equal basis, and there arecases in which it is not possible to expect a resolution by handling with such verbal
battles”, and denied the application of the legal principal of opposing speech due to nothaving ever used the bulletin board in question, not having behaved in a way thatinduces criticism of oneself on the bulletin board in question, remarks aimed at theappelles on the thread in question should be considered slander by anonymous persons,and there being a limit on the making of effective rebuttals to such remarks on thebulletin board in question.
* The judgment issued by the Tokyo District Court on 17 July 2003 (Judicial Precedent
Summary 16) denied the application of the legal principal of opposing speech on the
grounds that remarks in each thread virtually all concern the social ensnaring of theplaintiffs, and since it is recognized that a large number of unspecified users unilaterally
attacked the plaintiffs, the assumption itself to begin with of engaging in debate on
equal terms with plaintiffs is lacking, etc.
* The judgment issued by the Tokyo District Court on 31 May 2007 (Judicial Precedent
Summary 17) denied the application of the legal principal of opposing speech on the
grounds that even if the injured party stated refutals on his or her own website, etc. on
the Internet with respect to the content stated on a website by the perpetrator, viewers of
the website concerned may not necessarily view the website that states the injured
party’s refutals, and being able to refuse on the Internet cannot be said to have an
influence on the constituting of a tort defamation.
(3) Judicial precedents involving the character of the media
There are judicial precedents that restrictively interpret the affect of the media’s
character with regard to whether the media’s character has an affect on the outcome ofdefamation. Namely, the court ruled that “society’s general evaluation of the relevant
newspaper’s editorial policy, the main make-up of their readership, and the nature of the48

relevant newspaper based on such factors does not affect the outcome of the tort
liability”, and even though it is a sports newspaper, “as long as the relevant newspapers
has the characters of a news coverage medium, the readership will not as a general rule
perceive articles published in the relevant newspaper to be unsubstantiated, and since it
is usual to think that the relevant articles contains a certain degree of truth, it is notpossible to deny the danger that the social evaluation of the person targeted by thearticle will fall as a result of the publication of such article” (Judicial Precedent
Summary 19). Based on this judicial precedent, even acts of expression thatprovisionally state that the information is hearsay, (for example, acts of expression onsite and bulletin boards that compile second class stories) can be construed as
defamation.
In cases other than those mentioned above, from the standpoint of defamation, there aremany cases that fall under justifiable cause for noncompliance with the law, and it isconceivable that there will be many cases where the grounds for a provider, etc. to beable to believe in “unjust right-infringing” are poor since it is difficult for a provider, etc.
to determine the public nature, public benefit, and credibility (or reasonability) required.
Additionally, from the standpoint of defamation, etc. even if there are cases where
deciding whether information is illegal is not possible, from a privacy and otherstandpoint, there are cases were rights can be said to be being infringed and thus
reviews from other standpoints are also necessary.
II-4
Transmission Prevention Measures for Information that Infringes the Rights ofCorporations and Other Juridical Persons(1) Information that infringes the rights of corporations and other juridical persons, etc.
Given that there are many cases in which it is not possible for a provider, etc. todetermine the authenticity of the facts indicated in cases where acts of expressions havebeen made that damage the honor or credibility of specific political parties, corporations,or other juridical persons, or local governments, generally, it is reasonable to respondhaving taken the inquiry procedures, etc. provided for in article 3 paragraph (2) item (2)of the Provider Liability Limitation Act.
However, as there are cases that may fall under legitimate defense or emergency
evaluations even if such cases do not fall under grounds for exemption set forth inarticle 3 of the Provider Liability Limitation Act, there are cases where such aspectneeds to be reviewed.
Reviews were undertaken from the standpoint of defamation, etc. since invasions of49

privacy are not established for corporations and other juridical persons, etc.
Not only individuals but even for a specified political party, company or other juridical
person (judgment issued by the First Petty Bench of the Supreme Court on 28 January
1964, Supreme Court Reports (civil cases) Vol. 18 No. 1, page 136) or an organization
without right capacity, if a certain social evaluations exists with regard to them, such
evaluation is the target of legal protection as fame.
Additionally, in order to determine that defamation attacks with respect to juridical
persons simultaneously constitute defamation with respect to representatives, it isnecessary to examine whether attacks are aimed at a number of people and to determinethat such attack was also substantially aimed at the representative (judgment issued by
the Third Petty Bench of the Supreme Court on 16 April 1963, Supreme Court Reports(civil cases) Vol. 17, No. 3 page 476, Judicial Precedent Summary 20).
(2) Local governments
Local governments are public juridical persons that operate with the objective ofundertaking administration in a certain region, and there are a large number of local
governments in Japan. The activities, etc. they engage in for administrative purposes arevaried and different, and they have a certain social evaluation since they may be thetarget of evaluations that include such activities, and they are the target of legal
protection as fame given that such social evaluation forms a foundation with regard tosocial activities involving transactions is the same as private juridical persons (judgment
issued by the Oita District Court on 19 November 2002, Law Times Reports No.1139
page 166).
(3) Response to information that infringes the rights of corporations and other juridical
persons, etc.
Credit in economic transactions is protected by damage to credit under the Penal Code(Penal Code article 233) but since credit is an evaluation that society grants to people
from an economic standpoint, it is possible that it is a form of honor under civil
legislation.
In cases where acts of expression have taken place that damage the honor or credit ofcorporations and other juridical persons, etc., given (1) that corporations and otherorganizations are seen as being public entities in almost all cases, (2) that acts ofexpression relate to matters of public interest and putting aside whether this is solely thecase (there are also cases that include other motives), they can be evaluated in their own
way as having objectives that serve the public interest, and (3) even if expressions
50

reduce social evaluations of corporations and other organizations, given that there aremany cases in which it is not possible for a provider, etc. to determine the authenticityof the facts indicated, it is conceivable that grounds that are sufficient for“unreasonableness” of right-infringing at the provider, etc. will virtually always not besatisfied.
For this reason, it is conceivable that generally, it is reasonable to respond having taken
the inquiry procedures, etc. provided for in article 3 paragraph (2) item (2) of theProvider Liability Limitation Act.
However, as an exception, in cases where deletion is permitted such as cases wheretrade secrets (such as customer management system security holes, etc.) are publishedon web pages, etc. and there is a real and imminent danger that the relevant corporationand their customers will suffer major economic losses, etc., (for example, a case that
falls under the spreading of rumors, etc. set forth in the Financial Instruments andExchange Act), such aspect needs to be reviewed as there are cases that may fall underlegitimate defense or emergency evaluations even if such cases do not fall undergrounds for exemption set forth in article 3 of the Provider Liability Limitation Act.
p. 33-37
III Response Procedures for Taking Transmission Prevention Measures
III-1 Acceptance of Petitions
It is conceivable that in many of the cases where a provider, etc. is subject to petitions
for transmission prevention measures, such petitions are not filed by the providers’, etc.
members or contractors. Consequently, it is envisaged that there will be petitions to takepreventative measures pursuant to the Provider Liability Limitation Act and demands inrelation to the disclosure of identification information of the sender, and it is desirable
to make arrangements that enable a prompt response to petitions from parties other thanthe providers’, etc. contractors.
Satisfying all of the following conditions and accepting notice of transmission
prevention measures for infringing information is necessary in order to commence
inquiry procedures with the sender in accordance with article 3 paragraph (2) item (2) ofthe Provider Liability Limitation Act.
1)

The person requesting transmission prevention measures shall be a person
whose rights have been infringed due to the distribution of information by
51

2)
3)
4)
5)

specified telecommunications.
Be information that infringed the rights of the person him or herself due to the
distribution of information by specified telecommunications.
Rights infringed are specified.
Describe reasons as to how rights have been infringed.
Be a declaration of intent to desire transmission prevention measures.

It is conceivable that the acceptance of the above-mentioned infringing information, etc.
from a petitioner in writing by a provider, etc. will be useful in determining the need forvoluntary transmission prevention measures by the provider, etc. provided for in 2
below.
Additionally, care is necessary since there are cases that will not be exempted fromliability for damages even if all the five above-mentioned items are not satisfied due tothe relationship with the petitioner. For example, even if there are cases in which theconditions of (1) are not satisfied but a petition is filed by a third party (including
Human Rights Organs of the Ministry of Justice) or the conditions of (5) are notsatisfied and it is not evident whether transmission prevention measures are desired,when transmitted information is specified by the relevant warning and satisfies therequirements for tort such as defamation or invasion of privacy, then there will be casesthat fall under “where there is a reasonable ground to find that said relevant service
provider could know the infringement of the rights of others” set forth in article 3
paragraph (1) item (2) of the Provider Liability Limitation Act.

III-2
Necessity of Voluntary Transmission Prevention Measures by Providers, etc.
Where requests for transmission prevention measures or complaints have been received
to the effect that illegal information has been published from a petitioner or third party
on websites that are stored on servers managed by a provider, etc., a judgment will bemade by the provider, etc. as to whether such information infringes the rights of others.
Where it is evident in accordance with the judgment criteria provided for in chapter IIthat the relevant information infringes the rights of others, voluntary transmission
prevention measures will be taken to ensure that liability for damages is not incurred
due to falling under “where there is a reasonable ground to find that said relevant
service provider could know the infringement of the rights of others” (article 3
paragraph (1) item (2) of the Act) in relations with the petitioner. Due to falling under52

“where there was a reasonable ground for said specified telecommunications service
provider to believe that the rights of others were infringed without due cause” (article 3
paragraph (2) item (1) of the Act) in relations with the sender, there will be cases where
even if transmission prevention measures are taken, there are no risks of demands forcompensation for damages from the sender.
Nevertheless, even in light of the judgment criteria provided for in chapter II, there aremany cases where the judgment of whether it is permissible will not be clear even if
transmission prevention measures are taken. In such cases, it is possible to take inquiry
procedures pursuant to article 3, paragraph 2 item (2) of the Provider Liability
Limitation Act. Further, notwithstanding the provisions of article 3, paragraph 2 item(2), in cases where it is conceivable that measures are not urgent even when the provider,etc. has judged that voluntary transmission prevention measures are permissible, it isconceivable that it is desirable to first encourage problem resolution by the parties
concerned such as a response by the sender through inquiry procedures.
III-3

Inquiry Process Procedures

In cases where it is hard to judge whether it is a case in which the provider, etc. isallowed to take transmission prevention measures, namely, cases where the existence orof a “reasonable ground for said specified telecommunications service provider tobelieve that the rights of others were infringed” set forth in article 3 paragraph (2) item
(1) of the Provider Liability Limitation Act is not evident, the procedures set forth inarticle 3, paragraph 2 item (2) may be used.
1) Petitioner verifications
In inquiry procedures, verification that the person who is requesting the transmission
prevention measures is the person whose rights have been infringed as a result of the
distribution of information by specified telecommunications or an agent (attorney, etc.)of that person. Consequently, it is necessary to verify identity according to the following
procedures, for example,a) In writing – obtain an imprint of a registered seal (so called jitsuin) and attach a
Certificate of Seal Registration issued within the last three months.
b) By electronic mail – verify that an electronic signature is included that can certifythat the message was sent by the individual himself using an official electronic
certificate.
c) Where using an agent – in addition to a) or b), attach a letter of power of attorney to53the agent.20

Additionally, in cases where it is definitely possible to verify the individual, the above
shall apply but methods such as using other traditionally used means of verifying
identity (copy of passport, driver’s license, or other identification certificate, etc.) or
requesting submission using a seal other than a jitsuin, or receiving a facsimile as an
initial report, are also conceivable. Either way, it is necessary to adopt identity
verification means considered appropriate at the responsibility of the provider, etc.
2) Specifying infringing information, etc.
It is necessary to receive notice of infringing information, etc. from the petitioner
himself or his agent in order to commence inquiry procedures. Due to it being necessary
for a provider, etc. to inform the sender of such infringing information, etc. and toinquire as to whether transmission prevention measures will be taken, in cases where
infringing information, etc. that is sufficient to determine whether the sender shallconsent to taking transmission prevention measures, cannot be specified, the provider,etc. must carry out verifications by a method such as having the informer amending theunclear aspects, etc. and resubmitting documents. In cases where infringing information,etc. is not adequately specified despite asking about unclear aspects, etc., in cases whereapproximate grounds cannot be recognized in a petitioner’s claim, and in cases where
the relevant infringing information is not actually managed by the sender, it is desirable
for a provider, etc. to inform the petitioner without delay that it is not possible tocommence inquiry procedures.
Further, the following information should be conveyed to the sender(a) Information that infringes his or her rights due to the distribution of information
through specified telecommunications.
(b) Right infringed.
(c) Reasons rights have been infringed.
(d) Declaration of intent of desiring transmission prevention measures.

If the agent is an attorney, requests to attach a power of attorney are not ordinarily
made and are thus unnecessary. Additionally, Certificates of Seal Registration are notnecessary for attorneys.
2054Additionally, given that there are cases where there are rational grounds to concealnames, etc. in relations between the petitioner and the sender (such as cases where thetransmitter does not know the name of the petitioner such as the publication ofphotographs, etc.) with regard to whether it is acceptable to disclose the name, etc. of
the person who made the request to the sender to take transmission prevention measures,
as a general rule, such information should not be disclosed. Note, however, that thisshall not apply when the petitioner has consented to disclosure (attached form). Further,as only the petitioner him or herself or their agent may request that transmission
prevention measures be taken in relation to the inquiry process, in right-infringing suchas defamation or invasion of privacy, etc., the sender may be naturally able to guess thename of the petitioner during the inquiry process, and this is unavoidable.
3) Cases where inquiries are possible
Providers, etc. may notify the sender that a request has been made to take transmission
prevention measures and of the infringing information, etc. provided by the petitioner,and inquire whether the sender consents to the taking of transmission prevention
measures. Refer to (2) above as to whether the name, etc. of the petitioner may bedisclosed in such cases.
In such cases, it is desirable to write, in order that the sender recognize the situation,that deletion, etc. transmission prevention measures will be taken in accordance with the
purpose of article 3 paragraph (2) item (2) of the Provider Liability Limitation Act
unless objections are made according to a method specified by the provider, etc. withinseven days of receipt of the relevant notice by the sender. (Refer to: form 1) -1)
4) Cases where inquiries are not possible
In cases where a provider, etc. has received reports of infringing information, etc., it is
not an obligation under laws and regulations to notify the sender that a request has been
made to take transmission prevention measures and of the infringing information, etc.
provided by the petitioner, or to inquire whether the sender consents to the taking oftransmission prevention measures. Consequently, it is not necessary to proceed withinquiry procedures in cases where it is not possible to contact the sender.
If such case falls under a cases where transmission prevention measures may be taken
instantly without undertaking inquiry procedures, (article 3 paragraph (2) item (1)),
transmission prevention measures may be taken based on the judgment of the provider,etc. Conversely, when it is not possible to determine whether transmission prevention
measures may be taken instantly, since it is generally thought to be difficult to55

determine whether falling under cases where there is a high risk of not being immune toliability for damages from the petitioner (cases where there are “reasonable ground tofind that said relevant service provider could know the infringement of the rights ofothers” as used in article 3 paragraph (1) item (2) of the Act), respond by either
considering and contemplating the risk of a lawsuit from the sender or taking
transmission prevention measures considering the risk of a lawsuit from the petitioner.
In the latter case, if it has been manifested that deletion, etc. measures may be taken at
the provider, etc. discretion in contract clauses or terms of use, for example, even if
there are cases where it is not clear whether falling under article 3 paragraph (2) item (1)of the Provider Liability Limitation Act, if the relevant contract clauses or terms of use
are of a scope recognized as being reasonable, then it will surely be possible to taketransmission prevention measures pursuant to the relevant provisions (note, however,
that, care should be taken in the manner of provisions since there is a risk that one-sided
exclusion clauses will be invalid in relation to the Consumer Contract Act).
5) Inquiry procedures
In cases where it is possible to verify the petitioner through the above-mentioned
process (including verifying relations of entrustment in the case of agents) andinfringing information, etc. has been specified, and inquiries are possible, it is desirable
for inquiry procedures to the sender to be taken without delay after receiving the request
for transmission prevention measures from the petitioner. Note, however, that in being
slow to make decisions in relation to the necessity of voluntary transmission prevention
measures due to the provider, etc., determining after all that there are no grounds formaking inquiry procedures that should take transmission prevention measures, andplanning responses other than transmission prevention measures (promoting resolution
between the parties concerned, etc.) there may be cases where it is not possible to startinquiry procedures even after a reasonable term has elapsed since receiving the requestfrom the petitioner. Since the obligation to commence inquiry procedures after receivinga request for transmission prevention measures is not provided in the Provider Liability
Limitation Act, when there are unavoidable reasons, excluding cases that fall under any
item of article 3 paragraph (1) of the Provider Liability Limitation Act, 21 it isEven if falling under any item of article 3 paragraph (1) of the Provider Liability
Limitation Act, this alone does not result in liability for damages due to violations of theobligation of a provider, etc. to take transmission prevention measures immediately, andthere are cases were a provider, etc. can be absolved from violations of obligations to

21

56

conceivable that a provider, etc. will not incur liability for delaying inquiry procedureswith regard to the petitioner.

Inquiry procedures are undertaken using reference forms, and verifying whether there
are objections from the sender within seven days reckoning from the day immediately
after the day on which the relevant inquiry arrived at the sender (for example, if therelevant inquiry is sent on 1 March, forms will arrive within two days if within the samemunicipality and objections should be made by 9 March). Additionally, using averification method such as recorded delivery if sending by post is a surefire method ofverifying the date on which the relevant written documentation (inquiry form) arrived at
the sender.
6) When the response from the sender to the inquiry does not consent to the taking oftransmission prevention measures
In cases where there is a “notice from said sender indicating his disagreement with
implementation of said transmission prevention measures” on the grounds of areasonable objection from a sender, if it is determined that there are no “reasonablegrounds to find that said relevant service provider could know the infringement of therights of others” based on such objection, etc., the provider’s, etc. immunity fromliability for damages is conceivable even if transmission prevention measures were nottaken with regard to information subject to requests to take transmission prevention
measures.
Conversely, cases where grounds are not stated although there has been a “notice fromsaid sender indicating his disagreement with implementation of said transmission
prevention measures”, are conceivably the same as in cases where inquiry procedures
are not gone through as to whether a provider, etc. can take transmission prevention
measures. Further, even in cases where there is an objection have gone through inquiry
procedures, if the provider, etc. can verify that the relevant objection is unreasonable,
etc., falling under “where there is a reasonable ground to find that said relevant service

delete by taking an appropriate response such as issuing warnings without delay to thesender and responding to consultations with the petitioner.
57

provider could know the infringement of the rights of others” (article 3 paragraph (1)item (2) of the Act) or “where there was a reasonable ground for said specified
telecommunications service provider to believe that the rights of others were infringed
without due cause” (article 3 paragraph (2) item (1) of the Act) , then it is safe todelete.22

7) When there is no response from the sender to the inquiry that does not consent to thetaking of transmission prevention measures
In cases that fall under article 3 paragraph (2) of the Provider Liability Limitation Act,
liability for acting with respect to the sender is not borne and transmission prevention
measures can be taken. Further, in relations with the petitioner, by taking transmission
prevention measures a provider, etc. will be concurrently exempt from liability for not
acting.
III-4
Response to Requests to Delete Information from Human Rights Organs of the
Ministry of Justice(1) Acceptance of requests
It is necessary to accept notices of transmission prevention measures for infringing
information in a form that satisfies all the following conditions in order to respond torequests to delete information from Human Rights Organs of the Ministry of Justice andverify that there is “a reasonable ground for said specified telecommunications service
provider to believe that the rights of others were infringed (article 3 paragraph (2) item
(1) of the Act)”. As a general rule, notices need to be made in writing but in highly
urgent cases, after sending the notice by facsimile, and having been able to verify bytelephone that a request to delete has been made with the relevant Human Rights Organsof the Ministry of Justice, a written document may be accepted after the fact (refer to:form (1) -2).
(1)
The request is from a Human Rights Organ of the Ministry of Justice.

Safe used here means, in addition to a provider, etc. being immune from liability for
failure to act in relation to the distribution of the relevant information with regard to thepetitioner by deleting information subject to requests for transmission prevention
measures, also means the strong possibility of being immune from liability for deleting
information with regard to the sender.
22

58

(2)
(3)

Infringing information, etc. is specified.
Infringed rights are specified and the grounds for right-infringing are reason.

(2)
Review of need for transmission prevention measures
Verify whether there are any grounds (refer to below) for not responding to requests todelete from Human Rights Organs of the Ministry of Justice, transmission prevention
measures may be taken if there are no such grounds, but it is desirable to make adecision on the response method having consulted with a specialist such as an attorney,etc. in cases that fall under any of the following grounds.
<Grounds for not being able to respond to requests to delete>(1)
When it is not possible to verify that the request is from a Human Rights
Organs of the Ministry of Justice.
(2)
Where there is no infringing information at the location specified by the
Human Rights Organs of the Ministry of Justice.

p. 38
(3)
When the rights supposedly infringed have not been specified.
(4)
In cases where the illegality of information that infringes the rights of others is
not obvious in light of the criteria for determining provided for in chapter II of these
Guidelines (including when there is scope for inserting reasonable doubt with regard toabuse of public authority.)(5)
When measures exceed “necessary limits” such as cases in which a large
volume of other unconnected information will be deleted as a result of deleting theinfringing information.
(3)
Cases in which decide not to take transmission prevention measures
It is possible to request additional explanations from a Human Rights Organs of the
Ministry of Justice in cases that fall under any of the grounds set forth in (2) above
where it is recognized that there are reasons for not being able to respond to requests todelete from a Human Rights Organs of the Ministry of Justice. Further, while voluntary,
it is desirable to notify the Human Rights Organs of the Ministry of Justice stating thereason in cases where the request to delete from a Human Rights Organs of the Ministryof Justice does not satisfy the criteria provided for in these Guidelines.
59III-5
Non-Transmission Prevention Measure Responses
Even in cases where a provider, etc. has determined that taking transmission prevention
measures is not necessary with regard to information declared by the petitioner,
conducting inquiry procedures, etc. and taking measures that promote voluntary
problem resolution by the parties concerned such as dispute resolution through direct
negotiations between the sender and the petitioner, is desirable.
Further, as with cases in which a declaration of damage was first made to the provider,etc. that hosted the relevant web page with regard to a post on a bulletin board on a web
page, in cases where a specified telecommunications service provider has a multiple
existence, (provider, etc., and web page developer and bulletin board manager), theprovider, etc. that received the declaration may respond by requesting that the petitioner
first request a response from the specified telecommunications service provider (webpage developer and bulletin board manager) more likely to be able to manage therelevant information.
Note, however, that this shall not apply in urgent cases where actual damage has
occurred to the petitioner and where there is a need to respond immediately to prevent
damage spreading.

p. 39
IV

Reference Forms and Judicial Precedents, etc.

1

Reference Forms

p.40
Form (1) -1

Notice of Infringing Information (Defamation / Privacy)

Year--Month--Day
To: [appellation of specified telecommunications service provider]:[Person claiming that their rights have been infringed]
Address
Name (name) seal
60

Contact Information (telephone number)(e-mail address)
Notice of Infringing Information and Request for Transmission Prevention Measures
Since my rights were infringed because of the distribution of the following informationthat was published on a specified telecommunications system you manage, I hereby
request you to take measures to prevent the transmission of the relevant information.
Details
Location at which published
URL:
Other information necessary to identify the information: (bulletin board appellation,
location of post within bulletin board, date, file name, etc.)
Information published
Example) Having published my real name, address, telephone number and mail address,
you made a deceptive post that made it seem as if I am looking for a lover, stating“Would you like to have a no-strings-attached relationship with me?”.
Infringing information, etc.
Rights infringed
Example) Infringement of privacy, defamation
Grounds on which rights were infringed (state of damage, etc.)
Example) When using the Internet I use a handle name and do not disclose my realname and contact information, information was published against my wishes, I received
xx relationship requests and harassment, teasing prank telephone calls and unsolicitedemails and suffered mental anguish.
Details stated in the bold frame above are true and I consent to you using the above
when notifying the sender.
Please write a circle in the column on the left if you agree to the disclosure of yourname to the sender. If you do not write a circle it shall be assumed that you do not agree
to the disclosure of your name.

61

p. 41
Form (1) -2
Notice of Infringing Information and Request for Transmission
Prevention Measures (defamation / privacy)
Year--Month--Day
To: [appellation of specified telecommunications service provider]:[Human Rights Organs of the Ministry of Justice]Head of the ○○ (District) Legal Affairs Bureau

seal

Contact Information (address)(telephone number)(e-mail address)(Agent)
Notice of Infringing Information and Request for Transmission Prevention Measures
As it is revealed that my human rights were violated following the distribution of thefollowing information that was published on a specified telecommunications system
you manage, and in addition, since it is also recognized that it is difficult for the injured
party to plan the recovery and prevention of damage, I hereby request you to takemeasures to prevent the transmission of the relevant information.
Details
Location at which published
URL:
Other information necessary to identify the information: (bulletin board appellation,
location of post within bulletin board, date, file name, etc.)
Information published
Example) Name and address of ○○Infringing information, etc.
Rights infringed
Example) Infringement of privacy
Grounds on which rights were infringed (state of damage, etc.)
Example)Against the wishes of the injured party, an private individual, the name and address of62

that party were published and a number of letters, etc. that slandered the injured party
were sent to the relevant address.
Details stated in the bold frame above are true and I consent to you using the above
when notifying the sender. I also consent to the notifying of the appellation, etc. of therequesting agency when notifying the sender.
p. 42Form (2)Infringing Information (Defamation / Privacy)

Year--Month--Day
To: [ sender ][Specified telecommunications service provider]
Address
Company
NameContact Information
Notice of Infringing Information and Inquiry in Relation to Transmission Prevention
Measures
We have received a report of infringing information that infringes rights through the
distribution of the following information you transmitted and a request to taketransmission prevention measures, and thus we are inquiring as to whether you consent
to the taking of transmission prevention measures pursuant to article 3, paragraph (2)item (2) of 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 (Act No. 137 of 2001).
There may be cases where, if you do not indicate that you do not consent to the takingof transmission prevention measures within seven days of the date of receipt of thisdocument, we shall immediately delete the following information as a transmission
prevention measure. Further, please be aware that there may be cases in which we takemeasures pursuant to our separate contract clauses.*
63

Additionally, you may take transmission prevention measures such as deleting thefollowing information voluntarily.
Details
Location at which published
URL:
Information published
Infringing information, etc.
Rights infringed
Grounds on which rights were infringed* Can be added if there are contract clauses, etc. between the sender and the provider,etc. (specified telecommunications service provider).
p.43
Reference Forms Response (Defamation / Privacy)
Year--Month--Day
To: [appellation of specified telecommunications service provider]:[Sender]
Address
Name
Contact information
Response
I hereby response as follows to your inquiry regarding the handling of the following
infringing information.
[Indicate infringing information]
Location at which published
URL:
Information published
Infringing information, etc.
Rights infringed
Grounds on which rights were infringed64

Details[Response Details] (Write a circle as appropriate*)( ) I do not consent to the taking of transmission prevention measures( ) I consent to the taking of transmission prevention measures( ) I consent to the taking of transmission prevention measures and I shall delete theproblematic information.
[Reason for Response]*N.B. We shall assume that consent has not been given if there is no circle.
END
p. 44-45
IV-2
Judicial Precedents in Relation to Communications Service Providers’ Liability
for Illegal Acts
(1)
Metropolitan University incident, first judgment (Tokyo District Court,
September 24, 1999, Reports of Precedents No. 1707 Page 139)
1
Outline of case
(1)Fight broke out between groups in a dispute involving the legitimacy of auniversity circle in which members of both groups incurred injuries.
(2)
A student belonging to one of the groups published a document on a website
established within the university’s system that stated that the opposing group had
engaged in violence and caused injury.
(3)
There are no guidelines for “liberal education systems” but there are guidelines
for “education and research systems” with provisions to the effect that it is possible toorder deletion in cases where it has been judged that the content of the information is
not permitted as a socially accepted idea.
(4)
A student of the opposing group took legal action against the person who madethe statement and (Tokyo metropolitan government that established) the university.
2
Outline of ruling (relevant sections)(1) Since the transmission from the network of information that it not permitted as a65socially accepted idea damages the credibility of the network as a whole, the network
manager, (generally the manager does not have the authority to give instructions andorders with regard to the content of individual bits of information and even in cases
where the draft actor bears liability) ordinarily has the authority to delete individual bitsof information in order to prevent such damage.
(2) Having the authority to delete public information that it not permitted as a sociallyaccepted idea is not an immediate obligation, the exercising of authority lies at thereasonable discretion of the manager, and as long as there is no deviation or abuse of
discretion, the exercising of authority is not illegal.
(3) There are cases where the manager should assume damage incidence obligations to
the injured party but rather than assuming uniform obligations if a situation that violates
penal laws and private law policy arises, it is essential to examine the nature of thematter according to the details of the penal laws and private law policy that has become
an issue.
→ For example, with virus transmission, given that there is a high probability that theproperty of others will be greatly affected and that there is a strong likelihood that theinterests of the daily lives of ordinary people will be infringed, etc., the obligation toprevent damage occurring, as a logical obligation, arises at the point in time at whichsuch act was perceived as a peremptory fact.
→ In terms of defamation, it is a criminal act and illegal act under private law, and it isinappropriate to impose the obligation to prevent damage arising since the risk of
infringing the interests of ordinary persons other than those concerned is minimal and it
is often difficult for the manager to determine whether the act constitutes defamation.
(4) The manager bears the obligation to prevent damage arising in cases where thetransmission of defamatory documents is perceived to have actually occurred and islimited to extremely exceptional cases in which it is obvious at a glance that such act
falls under defamation, that the mode of the offending act is particularly heinous, andthat the extent of the damage is enormous.
3 Application to the case(1) It is not obvious at a glance whether the problem document constitutes defamation,or if the mode of the offending act is malicious, or the damage enormous.
→ No obligations on the manager(2) The adoption by the manager of a measure that suspended the link on the problem
page following receipt of the written protest and the closure of the page following thefiling of a lawsuit was undertaken in accordance with a decision that such action was
66necessary in order to maintain the credibility of the system and were not taken on the
grounds that the act was a violation of the obligations under private law (is not anindication that knew that it was an illegal defamatory document)
Source: Ministry of Internal Affairs and Communications “Report by the Study Groupon the Security of Appropriate Information Distribution on the Internet” (December
2000) page 17

p. 46-47(2) Modern Ideas Forum (FSHISO) Second Judgment (Tokyo High Court on 5
September 2001, Reports of Precedents No. 1786 page 80)
1 Outline of case(1) Case of defamation between members triggered by criticism of the meeting room
operating policy on a forum.
(2) Nifty, as the final manager that operates the forum, the system operator as theoperator of the forum commissioned by Nifty, and the members who made the remarks
were accused. (Member who made the remark, the system operator and Nifty were theappellant in the second judgment)(3) The plaintiff members participated in the operation of the forum and had a different
status to general members (plaintiff members were appellees in the second judgment)
2 Outline of ruling (relevant sections)(1) Criteria concerning the establishment of defamation
1) Even on forums where differences of opinion can be easily predicted, naturally
restraint in arguments is necessary and diminishing others and compromising theirhonor beyond restraint is not permitted.
2) Remarks that do not bring meaning that substantiates a person’s claims and that are
no more than simple words that are abusive are not permitted even in the name of
discussion.
3) It is easy to object in the forum but it is difficult to recognize the value of objecting towords that are abusive and being abusive is not permitted as discussion just because it ispossible to object.
(2) Criteria by which the obligation to act, such as the obligation to delete, is incurredby the operator of the community in cases where defamation is established67

* There is a need for system operators to exercise the authority to delete problematic
remarks such as slander, etc. by members, for the smooth operation of forums, and incases where persons at whom remarks are targeted do not have valid remedies andissues are not resolved despite taking other measures, the system operator shall assume
the reasonable obligation to delete the relevant remarks.

3 Application to the case(1) Defamation
Excluding that falling under criticism with respect to the operating policy taken by theappellee, defamation is established with regard to user members’ remarks.
(2)
System operator/Nifty’s liability
In general terms, the obligation to delete is incurred but the system operator took thefollowing response and did not violate the obligation to delete. There is no liability as
far as Nifty, who commissioned the operation of the forum to the system operator, isconcerned either.
1) The forum is operated based on the idea of not immediately deleting remarks judged
as being reasonable to delete and raising the quality of remarks through constantdiscussion, and as an operating method, this cannot be said to be unjust.
2) The member who made the remark was reminded without delay of the remarks that,based on indications by members and their own judgment, were subject to deleting.
Further, although attempts were made to delete the remarks, were unable to obtain theagreement of the appellee regarding the method of deleting, remarks were deleted aftera request by the appellee’s agent, and further remarks expressed after the suit was filed
were deleted and it cannot be said that the delay in exercising the authority to delete
exceeded permissible limits.
3) The appellant’s remarks relate to matters requiring an explanation from the appellee(criticism with respect to the appellee’s operating policy) and circumstance in which theappellant alone cannot be unilaterally blamed are recognized. Taking this aspect into
consideration, violations of the obligation to delete the system operator cannot berecognized.
END
p. 48-49(3) Modern Ideas Forum (FSHISO) First Judgment (Tokyo District Court on 26 May
1997, Reports of Precedents No. 1620 page 22)681 Outline of case(1) Defamation was contested due to remarks corresponding to slander being posted in
the forum, and the member who made remark, system operator, and Niftyserver (at thetime) the PC communications carrier, were defendants.
(2) Case of PC communication, Niftyserve had a contractual relationship with bothparties concerned.
(3) Forum system operator was partly expected to have a certain involvement inremarks by members.
2 Outline of ruling (relevant sections)(1) In light of the following circumstances, “in light of logic”, there are cases where thesystem operator should assume a certain obligation to act.
1) The system operator was commissioned to operate and manage a specific forum andreceived remuneration as consideration, and the slanderous remarks were such details
2) The system operator was able to take measures to delete, etc. defamatory remarks andas a result such remarks could no longer be seen by other members
3) There are no effective means that a person subject to defamation can take him or
herself
4) Terms and conditions of membership and operating manuals include provisions to
the effect that slanderous remarks and remarks likely to be slanderous will be deleted(2) In light of the following circumstances, “in light of logic”, there is no obligation on
the system operator to act to constantly monitor the content of remarks, proactively
search to ensure there are no remarks (that will be problematic) and to review the
likelihood of problems with all remarks.
1) System operator is unable to check remarks posted to the forum in advance(fundamental difference to newspapers, magazines, etc.)
2) Many system operators are not full-time3) It is extremely difficult for the system operator to check all individual remarks as
they are posted due to the enormous number of posts(3) In cases where a system operator can be recognized as, at the very least, having been
specifically aware that remarks that damage the honor of others have been posted, inlight of such status and authority, system operators should be construed as having areasonable obligation to act to adopt necessary measures.
69

(4) Niftyserve does not contractually have an obligation to consider safety between
members and there is no liability for breach of contract, however, a practical control andsupervision relationship that should form the basis for users’ liability is recognized
between Nifty and the system operator.
3 Application to the case(1) After making remarks, received notice from operating committee and members andwarned the person who made the remark but did not delete and left the situation to free
discussions amongst those concerned→1) Were aware of the content and existence of the remark, further, 2) being able to
make an objection does not lead to the violated obligation to act and thus is a violationof the obligation to act→ If a violation of the obligation to act is recognized, at the very least, the fact thatnegligence occurred is factually presumed(2) Was informed by the injured party and 1) put on agenda of operating committee, 2)
contacted and consulted with injured party (noted that deleted due to being illegal as aresult of reviews following a lawsuit by the injured party and proposed to delete andwas rejected), and 3) spoke with the injured party by telephone→ From the standpoint of harmonizing two requests involving the plaintiff’s interests
and the smooth operation and management of the forum, commend response that were
not unable to approve and that necessary measures were adopted.
Further, when undertaking 3) consulted with a trustworthy person and thus were told
want to wait to delete, and after 4) received a request to delete and immediately deleted→ In this aspect, commend that necessary measures were adopted(3) Adopted measure involving removal from register after consulting with Niftyserve
regarding circumstances that became aware of through lawsuit→ Evident that was proper→ Given that a lawsuit was filed, are unable to argue that there was a certain timeinterval (received notice of lawsuit on April 25, removed from register on May 25) andshould say that have adopted necessary measures
Source: Ministry of Internal Affairs and Communications “Report by the Study Groupon the Security of Appropriate Information Distribution on the Internet (December
2000) page 16

70

p. 50(4) Book and Magazine Forum first judgment (Tokyo District Court August 27, 2001)*
N.B.
1 Outline of case(1) Case of defamation and invasion of privacy with respect to member B by member Athat stemmed from a dispute involving the Chinese character notification of terminology
between non-accused member A and the plaintiff, member B.
(2) Nifty is not a party concerned in the defamation and invasion of privacy but asmember B was unable to identify the address and name of member A, the operations
manager, Nifty, alone was sued as the accused.
2 Outcome of Defamation(1) Criteria for defamation outcome
1) Asserting through discussion with regard to infringements due to discussion is a
freedom of expression (since it is a basic principle of article 21 paragraph 1 of theConstitution in cases where the injured party has made adequate objections to theperpetrator and this has proved successful, it is possible to evaluate that the social
evaluation of the injured party has not fallen and in these cases too, certain expressions
have not emerged in particular and in recognizing tort liability with regard to theexpresser there is a risk of atrophy and this cannot be said to be reasonable.
2) At the time of determining whether remarks in PC communication damage the honor
or honor emotion of a person, should review whether the relevant remark is in danger oflowering a person’s social evaluation, and whether illegality will be rejected as assertion
discussions, as the criteria for general readers who participate in PC communication,
having jointly considered proof together with the background to the relevant remark, thesurrounding context, and objections from the injured party.
→ Decisions are made as the criteria for ordinary people who participate in PC
communication→ Cannot merely take a specific remark and discuss whether defamation with beestablished.
→ In cases where the injured party has separately objected and this has proved
successful, cannot recognize that social status has fallen and defamation is notestablished.
→ In cases where the remarks by the perpetrator that induced the injured party’s
71inappropriate remarks have become an issue, illegality is lacking and defamation is notestablished as long as such remarks are within the scope permitted as opposing
discussions.
(2) Judgment
Member B made necessary and adequate objections to the remarks of non-accused
member A and whether the danger that member B’s social evaluation will fall exists,
illegality is exempt given that non-accused member A’s remarks are within the scopepermitted as opposing discussions with respect to member B, and defamation is notestablished.
3 Outcome of invasion of privacy(1) Criteria for invasion of privacy outcome
Published matter is,

a private life matter or a matter likely to be construed as such,a matter recognized as being something not wished to be disclosed from the criteriaof the sensitivity of ordinary people,

p. 51



a matter not yet known to ordinary people,
a matter from which ordinary people who see the published matter can perceive toindicate a specific individual(2) Judgment
Invasion of privacy is not established given that handles indicating a specific individual
who actually exists (member B) are unlikely among participants, doubts remain thatmember B wished as an essential requirement to maintain anonymity such as sending
messages in his or her real name to a unspecified large number of people, and member
B’s real name is unusual and it is difficult for a third party to identify that the handle
used by non-accused member A refers to member B, etc.
* N.B. Pending Tokyo High Court at time of publication of first version of these
Guidelines (May 2002)
END

72

p. 52
IV-3
Human Rights Organs of the Ministry of Justice’s Process Leading to Requests
to Delete Information
Requests to delete at human rights organs of the Ministry of Justice are made in thename of the director of each legal affairs bureau and district legal affairs bureau (refer tothe “List of Human Rights Organs of the Ministry of Justice” for details), and decisions
on requests to delete are, as shown below, undertaken through a double screening by
each legal affairs bureau and district legal affairs bureau and the Ministry of Justice
Civil Liberties Bureau (*1).
(1) Commencement of relief procedures
Each legal affairs bureau and district legal affairs bureau commences relief procedures
starting with damage declaration or various information from the injured party.
(2) Each legal affairs bureau and district legal affairs bureau reviews the relief method
and each legal affairs bureau and district legal affairs bureau that has commenced reportrelief procedures with respect to the Ministry of Justice Civil Liberties Bureau shallreview whether
1) it is a case that cannot be overlooked in terms of human rights protection2) it is a case in which the injured party him or herself recognized that planning
recovery and prevention is difficult considering the various circumstances overall
Cases that fall under above-mentioned 1) and 2), and in which requests to delete areconsidered to be reasonable must be reported as special cases (*2) to the Ministry ofJustice Civil Liberties Bureau.
(3) Reexamination by the Ministry of Justice Civil Liberties Bureau, attaching approvaland instructions
The Ministry of Justice Civil Liberties Bureau shall, having received a report of a
special case, once again review whether the case is one in which the request to delete isconsidered reasonable and give approval or instructions regarding rights and wrongs.
(4) Carry out deletion requests at each legal affairs bureau and district legal affairs
bureau for cases for which approval or instructions have been received as provided forin above-mentioned (3)
73

(*1)

In view of the urgency and gravity of the case, the Ministry of Justice Civil Liberties
Bureau may undertake relief procedures directly, and make requests to delete in thename of the bureau director.
(*2)
Special cases: cases in relation to certain important and difficult human rights
violations that require a report to and approval, etc. from the director of the controlling
legal affairs bureau and the director of the Civil Liberties Bureau.

p. 53
IV-4
List of Human Rights Organs of the Ministry of Justice (related to requests todelete) Current as of July 1, 2004
IV-4

法務省人権擁護機関のリスト(削除依頼関係)翻訳対象外

p. 55
IV-5
Summary of Judicial Precedents
This Judicial Precedent Summary (hereinafter referred to as this “Judicial Precedent
Summary”) is a brief summary of judicial precedent summaries relating to thatmentioned in this document for the reference of users of the Provider Liability
Limitation Act Guidelines Relating to Defamation and Privacy (hereinafter referred toas these “Guidelines”).
(1) Two types of Judicial Precedent Summary have been prepared, a privacy
compilation and a defamation compilation.
(2) Parts that quote judgments use quotation marks. As there are cases where it isdifficult to tell from the quotations from judgments whether either the appellant orappellee is the injured party and media, etc., quote notes have been included withinsquare parentheses as necessary for cases that were appealed. Example) “The appellants[media] claim that privacy rights have not been infringed.”(3) Description of each item in Judicial Precedent Summaries(3)-1 Date
Indicated judgment date or ruling date.
(3)-2 Judicial precedent reports Representative judicial precedent reports have beenstated as abbreviations.
Example) Supreme Court Reports (civil cases): Supreme Court Civil Case Judicial
Precedent Reports
74

Lower Instance Supreme Court Reports (civil cases): Lower instance Court Civil
Judicial Precedent Reports
Supreme Court Reports (criminal cases): Supreme Court Criminal Case Judicial
Precedent Reports
Reports of Precedents: Hanrei Jihou
Law Times Reports No.: Hanrei Times, etc.
(3)-3 Categories
In the privacy compilation, disclosed or published, etc. are targeted, and the types of
information contested with regard to the existence of an invasion of privacy are
indicated, in the defamation compilation, mostly the points of contention are stated.
(3)-4 Cases
Indicate the details of claims by parties concerned with these
Guidelines (claims by injured party).
(3)-5 Judgment summaries
State the rulings of courts with respect to the details of the claim by the party concerned(generally referred to as the “injured party”) that requests relief with respect toright-infringing with regard to claims for compensation for damages and the publishingof apologizes from the standpoint of both invasion of privacy and defamation, andbriefly introduce the reasons. Even those judicial precedents that include many points ofcontention are described limited to claims in relation to privacy or defamation. Cases
where certain claims from injured parties (for example, claims only for compensation
for damages) are permitted and the remaining claims have been dismissed, as a generalrule, are stated as permitting compensation for damages.

75