WILMap: Japan


[Article 3 sets forth a safe harbor for telecommunications service providers in the following circumstances:
(i) When any right of others is infringed by information distribution via specified telecommunications, the specified telecommunications service provider who uses specified telecommunications facilities for said specified telecommunications (hereinafter in this paragraph referred to as a "relevant service provider") shall not be liable for any loss incurred from such infringement, unless where it is technically possible to take measures for preventing such information from being transmitted to unspecified persons and such event of infringement falls under any of the following items. However, where said relevant service provider is the sender of said information infringing rights, this shall not apply.
(ii) In cases where said relevant service provider knew that the infringement of the rights of others was caused by information distribution via said specified telecommunications.
(iii)  In cases where said relevant service provider had knowledge of information distribution by said specified telecommunications, and where there is a reasonable ground to find that said relevant service provider could know the infringement of the rights of others was caused by the information distribution via said specified telecommunications.]


[There are currently no known new legislative proposals on the issue of intermediary liability.] 


Superior Courts

Supreme Court, Animal Hospital Case, October 7, 2005
[defamation, hosting provider, bulletin board, liability]
[Channel 2, a Japanese bulletin board, has tried to invoke the safe harbor in an online libel actions, claiming that as an operator it could not know or reasonably know that any given bulletin post was defamatory.  The Supreme Court rejected these arguments and found Channel 2 liable on the rationale that, given the large amount of defamatory and “unreliable” content in threads found on its site, it was not necessary for Channel 2 to know that each thread was defamatory, but it was sufficient that Channel 2 had the knowledge that there was a risk that such transmissions/posts could be defamatory.]

[On January 31, 2017, the Supreme Court of Japan issued a decision on a case filed by an individual residing in Japan against Google Inc. in the United States, demanding the deletion of links in Google's search results to webpages that refer to the individual's crime committed in 2011.  The individual's demand was first examined by the Saitama District Court, which accepted the individual's claim specifically mentioning to the "right to be forgotten," and issued an order for Google Inc. to delete the links.  Google Inc. appealed the case to the Tokyo High Court, which reversed the decision and dismissed the individual's claim.  The individual then appealed the case to the Supreme Court.

The Supreme Court stated in its decision that the search result is not only an automatic and mechanical listing of information that simply intermediates third parties' website information, but also Google's own "expression." This means that the search result may constitute an infringement of another person's right to privacy, and Google Inc. as the party that expressed the information, may be liable for the infringement.  The Supreme Court, however, also averred that putting a restriction on search results may harm the search engine service provider's social role as an infrastructure service provider at present.  Based on this analysis, the Supreme Court concluded that whether providing links to websites that contain articles regarding someone's private information would constitute an illegal act must be determined considering several factors, including: (i) the nature and content of the information; (ii) the scope and magnitude of the effect when the information is spread; (iii) the individual's social status; (iv) the purpose and value of the article containing the information; (v) the social background at the time the article is publicized and subsequent changes; and (vi) the need to refer to the information in the article.  The Supreme Court concluded that a demand for the deletion of a link should be acknowledged only when the legal benefits gained by prohibiting the disclosure of the information obviously exceed the benefits that may be gained by providing the search results.

In this specific case, the Supreme Court dismissed the individual's demand for deletion, noting that the information concerning the individual's crime is still relevant to public concern because it was a child prostitution case that is still socially relevant. Therefore, the legal benefits from not disclosing the information does not obviously exceed the benefits that may be gained from allowing the search engine to accomplish its tasks unhindered.  The Supreme Court also noted that the scope of information spread is relatively limited because the search result only appears when a specific combination of words is used as the search term.

Before this Supreme Court decision was issued, some lower courts handled similar cases and some district courts issued orders to delete links to websites that may constitute an infringement of privacy.  For example, the Tokyo District Court accepted, in its decision of October 9, 2015, an individual's demand for Google. Inc. to delete links that contain statements suggesting that the individual committed a crime.  It was reported that Google actually deleted the links, according to the court order.

This Supreme Court decision is the first Supreme Court decision in Japan that dealt with a demand for the deletion of links to a website, filed against a search engine service provider.  Considering the criteria that the Supreme Court established ― the benefit from not disclosing the information "obviously exceeds" the benefit of providing information ― it may become difficult after this Supreme Court decision to demand that search engine service providers delete links to private information.]


Lower Courts

IP High Court Decision, Heisei 22 (Ne) No. 10076, Rakuten case, February 14, 2012
[trademark, hosting provider, online shopping mall, liability]
[(1) In this litigation, a trademark holder brought a trademark infringement litigation against Rakuten K.K., the operator of the online shopping mall named “Rakuten Ichiba”, claiming that Rakuten's operation of the online mall constituted an infringement of the plaintiff's trademark rights.  Rakuten Ichiba is an Internet shopping mall where retailers can establish virtual stores.  Some of such virtual stores sold products that infringe the trademark rights of the trademark owner.
(2) Rakuten argued that (i) the seller of the infringing goods was each of the retailers who established a virtual store in Rakuten Ichiba, not Rakuten, and (ii) the role of Rakuten was merely to provide retailers with opportunity to make deals with customers.  In response, the trademark owner argued that, considering the involvement of Rakuten in the sale of the goods, Rakuten should be deemed to have sold the goods at least together with the retailer.  
(3) The Intellectual Property High Court ("IP High Court") ruled in favor of Rakuten stating as follows: "An operator of web pages who, not only puts in place certain environment that enables retailers to establish web pages but also provides the operating systems, controls or manages establishment, maintenance and deletion of each virtual store, and obtains a benefit by requiring a store opening fee and a usage fee from the retailers, should be liable for infringement of trademark rights when it became aware of or there were reasonable grounds to find that the operator could become aware of the trademark infringement by the retailers; unless the operator deleted the web page constituting the infringement within a reasonable period after it became or could become aware of the infringement." In this case, the IP High Court concluded that, since Rakuten deleted the web pages within a reasonable period -- eight days from the time Rakuten became aware of the trademark infringement -- Rakuten was not liable for trademark infringement. Although this is a trademark infringement case, the Supreme Court's discussion concerning the online store's liability for user's IP infringement would similarly apply to copyright infringement and intermediary liability.]
Tokyo High Court Decision, File Rogue case, March 31, 2005, upholding Tokyo District Court, December 17, 2003
[copyright, hosting provider, peer-to-peer, music data, liability]
[(1) The File Rogue case further developed the NiftyServe decision (see below).  In this case, a company named Japan MMO started a service named “File Rogue”.  Japan MMO set up a server which collects, stores and distributes information concerning music data that each user of File Rogue owns, so that the users may exchange the music data using peer-to-peer data transmission application.  Actually, 96.7% of the music data exchanged by users using this service were illegal copies of music data.
(2) The Tokyo District stated that Japan MMO is liable for copyright infringement by users because (i) Japan MMO played an important role to collect and distribute information concerning users’ music data, (ii) it knew that most of the music data being exchanged by users were illegal copies that infringed copyright and (iii) did not take meaningful measures to delete infringing music data based on the “notice and takedown” procedure that Japan MMO claimed to have set up.]
Tokio High Court, Shogakan case, reversing Tokyo District Court, March 11, 2004
[copyright, hosting provider, bulletin board, liability]
[(1) With respect to a copyright infringement case involving Channel 2 where a user uploaded a small part of a copyrighted work onto the bulletin board, the Tokyo District Court held that Channel 2 only had a duty to remove works suspected of copyright infringement if it transmitted the infringing content or otherwise it was “obvious” the content infringed a third party’s copyright. The Tokyo District Court stated that Channel 2 was only an intermediary for transmitting third party information and that the sender of the email that contained the copyrighted work was the party that committed the unlawful act.  
(2) However, the appellant court (Tokyo High Court) reversed the Tokyo District Court decision and ruled that it was obvious that the uploaded contents are simply a copy of copyrighted work, and therefore Channel 2 had a duty to remove the works.]
Tokyo High Court Decision, NiftyServe Modern Thought Forum Case, September 5, 2001 (reversing Tokyo District Court, May 27, 1997)
[defamation, hosting provider, broadcasting board service, liability]
[(1) The issue of whether a party which merely administers or maintains a website or other online forums in which users or attendees committed illegal activities may be held liable for the illegal activities, was first discussed in Japan in the NiftyServe case.  In this case, a user of an online Broadcasting Board Service brought a lawsuit against another user who posted a libelous statement on the Broadcasting Board System.  The user also sued the administrator of the Broadcasting Board Service and the service provider company of the System, NiftyServe.
(2) The District Court found that the user’s posting of a libelous statement constitutes a tort and the user is liable to damages caused by such a statement.  The District Court also stated that the administrator was also liable for damages because it did not take appropriate measures such as deleting the statement long after becoming aware of the libelous statement on the Broadcasting Board System.  The Tokyo District Court further held Nifty Serve liable for damages as the entity under whose authority the administrator operated. 
(3) The parties appealed to the Tokyo High Court, which reversed the decision, stating that although in certain situations, the administrator and Nifty Serve should delete the libelous statement. In the present case, the administrator’s action was not too late.]
Tokyo District Court, Toritsu University case, September 24, 1999
[defamation, hosting provider, webpage, liability]
[(1) In this case, an individual placed on a university’s website, a webpage that contained defamation of another. The plaintiff sought damages against both the one who built the webpage and the owner of the university, the City of Tokyo, the legal operator of the network that hosted the website.  
(2) The court found the defendant who posted the message liable, but refused to hold the City of Tokyo liable on the grounds that is was improper to impose on a party remote to the defamatory act, the duty to prevent its dissemination. The court reasoned that whether or not the network operator’s duty to prevent the occurrence of the tort arises depends on the nature of the case and should be reviewed on an individual basis. The court went on to note that even in the case where a network operator had knowledge of the fact of the actual transmission of a defamatory statement, making the operator bear a duty to prevent the transmission should be limited to extremely exceptional cases, when it would be clear “at a glance” with respect to the defamatory statement that the “attitude of the perpetrator was very vicious and the that the degree of the injury would be serious.”]



Daisuke Tatsuno
Email: daisuke.tatsuno at bakermckenzie.com


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