1994.02.08

1989 (O) 1649

Minshu Vol. 48, No. 2

Judgment concerning whether or not a person may claim damages in the case where the facts concerning the person's previous conviction were disclosed in a work in which his/her real name is used

Case to seek solatium

Judgment of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of September 5, 1989

Where the facts concerning a person's previous conviction, etc. were disclosed in a work in which his/her real name is used, such person may claim damages for the emotional distress that he/she suffered due to such disclosure if the person's legal interest to keep said facts concerning his/her previous conviction, etc. undisclosed is judged to outweigh the reason for disclosing said facts, by taking into consideration the state of the person's later life, the historical or social meaning of the criminal case in which the person was involved, the importance of the person as a party to the case, and the person's social activities and influence thereof, in combination with the meaning and necessity of using the person's real name as seen in light of the purpose, nature, etc. of the work.

Articles 709 and 710 of the Civil Code

Civil Code
Article 709
A person who has intentionally or negligently infringed any right of others is liable to compensate any damages resulting in consequence.

Article 710
Persons liable for damages under the provisions of the preceding Article must also compensate for damages other than those to property, regardless of whether the body, liberty or reputation of others have been infringed, or property rights of others have been infringed.

The final appeal is dismissed.
The appellant of final appeal shall bear the cost of the final appeal.

Concerning the reasons for final appeal argued by the appeal counsel, OTSUKA Yoshikazu and SHINOMIYA Satoru, and those argued by the appeal counsel, KIMURA So, HASEGAWA Yukio, SATO Hiroshi, KOTO Akio, KURODA Junkichi, SHIDEHARA Hiroshi, GOTO Shojiro, SHINOMIA Satoru and OTSUKA Yoshikazu
I. In this case, the appellee of final appeal alleges that the appellant of final appeal used the appellee's real name in his work titled "Gyakuten" (Reversal) (hereinafter referred to as the "Work"), and the publication of the Work led to the disclosure of the facts concerning the appellee's previous conviction that he had been charged in the criminal case discussed below, and found guilty and imprisoned. Because of this, the appellee claims to have suffered emotional distress and therefore sought against the appellant payment of three million yen as solatium.

II. In response to this claim, the court of prior instance determined the facts as summarized in 1 to 3 below, and in short, it held as follows. When the Work was published, the appellee had a moral interest to keep the abovementioned facts undisclosed to others, and such interest was worthy of legal protection. There is no reason to justify the appellant having used the appellee's real name in the Work and thereby disclosing the facts concerning his previous conviction, nor is there any reason for the appellant to believe that using the appellee's real name in the Work would not be illegal. Holding as such, the court of prior instance found the appellant to be liable in tort against the appellee and affirmed as justifiable the judgment in first instance that upheld the appellee's claim to the extent to seek payment of 500,000 yen as solatium, while dismissing the appellant's appeal.
1. The Work was based on a true story about the following criminal trial (the "Trial"). On August 16, 1964, around 3:00 a.m., at a place in Ginowan City, Okinawa Prefecture, which was at that time under the rule of the United States, there was a fight between four men including the appellee, and two United States Marines, Private First Class D and Corporal E, which resulted in D's death and E's injury. With regard to this incident (the "Incident"), on September 4, 1964, the grand jury of the High Court of the United States Civil Administration of the Ryukyu Islands decided to indict the four men including the appellee for the crimes of injury causing death in relation to D and injury in relation to E (punishable under Articles 205 and 204 of the Penal Code of Japan), and as a result of the deliberation by the jury, a verdict was rendered, in relation to D, to find the four defendants not guilty of the charge of injury to death but guilty of the charge of injury included in the former, while finding them not guilty in relation to E. On November 6, 1964, the appellee and two others among the four defendants were sentenced to imprisonment with required labor for three years without suspension of execution for the crime of injury to D, and the remaining one was sentenced to imprisonment with required labor for two years with a two-year suspension of execution.
2. The appellee was imprisoned as sentenced in the Trial, and after being released on parole in October 1966, he worked in Okinawa for a while, but as things did not go well partly due to the Incident, he left Okinawa, and found a job as a driver at a bus company in Tokyo in October 1986. He married later, but he did not talk about his previous conviction to his company or his wife. While the Incident and the Trial were greatly covered by newspapers in Okinawa at that time, they were not covered by newspapers on the Japanese mainland, and therefore nobody around the appellee who lived in Tokyo knew the facts concerning his previous conviction.
3. The appellant was one of the jury members of the Trial. Based on his experience of jury service, he wrote the Work, which was published by Company F in August 1977, and then given high reputation as a work of non-fiction, and awarded Prize G in 1978.

III. The appeal counsel argue that the judgment in prior instance that found the appellant to be liable in tort against the appellee due to the aforementioned reasons is illegal for violation of the Constitution, violation of laws and regulations that apparently affects the judgment, and defective or inconsistent reasons attached to the judgment. We examine their arguments in the sections below.
1. The facts that a person was suspected of a criminal offense, and then accused, tried and given a judgment, especially a conviction, and finally imprisoned, directly concerns the person's honor or reputation, and therefore such person should be considered to have an interest, worthy of legal protection, to keep the facts concerning his/her previous conviction, etc. undisclosed unless there is a good reason for disclosure (see 1977 (O) No. 323, judgment of the Third Petty Bench of the Supreme Court of April 14, 1981, Minshu Vol. 35, No. 3, at 620). This reasoning equally applies irrespective of whether the facts concerning the person's previous conviction, etc. were disclosed by a public agency, or by a private individual or organization. After such person receives a conviction or serves out his/her sentence, he/she is expected to return to society as an ordinary citizen. Therefore, such person should be considered to have an interest to protect the peace in his/her new social life that he/she is building as well as the process of his/her rehabilitation from being harmed due to the disclosure of the facts concerning his/her previous conviction, etc.
At the same time, the facts concerning a person's previous conviction are relevant to a criminal case or criminal trial, which are objects of concern or criticism among the public, and if any historical or social meaning can be found in disclosing the case per se, it is not completely prohibited to disclose the real name of a party to the case. Furthermore, depending on the nature of the social activities in which said person has been engaged or the degree of influence which he/she could have on society through such activities, there may be a case where said person must accept the facts concerning his/her previous conviction, etc. being disclosed as a kind of reference for criticism or evaluation of his/her social activities (see 1980 (A) No. 273, judgment of the First Petty Bench of the Supreme Court of April 16, 1981, Keishu Vol. 35, No. 3, at 84). Moreover, if said person is in a public position which may be an object of reasonable concern among the public, such as a public official to be elected in an election or a candidate therefor, and the facts concerning his/her previous conviction, etc. are disclosed as a kind of reference for judging whether or not he/she is appropriate for the public office, such disclosure should not be held to be illegal (see 1962 (O) No. 815, judgment of the First Petty Bench of the Supreme Court of June 23, 1966, Minshu Vol. 20, No. 5, at 1118).
When making determination on these points in the case where the facts concerning a person's previous conviction, etc. have been disclosed in a work by using his/her real name, it is necessary to also consider the meaning and necessity of using the real name in light of the purpose, nature, etc. of the work.
To sum up, as regards the facts concerning a person's previous conviction, etc., the person may have an interest to keep such facts undisclosed and this interest may be worthy of legal protection in some cases, while the disclosure of such facts may be permitted in other cases. Whether or not an act of disclosing the facts concerning a person's previous conviction, etc. in a work by using his/her real name constitutes a tort should be determined by taking into consideration not only the state of the person's later life, but also the historical or social meaning of the case in which the person was involved, the importance of the person as a party to the case and the person's social activities and influence thereof, in combination with the meaning and necessity of using the person's real name as seen in light of the purpose, nature, etc. of the work. If, as a result, the person's legal interest to keep the facts concerning his/her previous conviction, etc. undisclosed is found to outweigh the reasons for disclosing such facts, the person should be allowed to seek compensation for the emotional distress that he/she suffered due to the disclosure of said facts. This view does not result in unduly restricting the author's freedom of expression. It is true that freedom of expression should be given due respect, but it does not always supersede other fundamental human rights, and hence, it is impossible to consider that an act of disclosing the facts concerning a person's previous conviction, etc. falls within the bounds of the constitutionally guaranteed freedom of expression to the extent that the author who has disclosed such facts would never be held to be liable in tort. This reasoning is also clear from the purport of the judicial precedent, 1953 (O) No. 1241, judgment of the Grand Bench of the Supreme Court of July 4, 1956, Minshu Vol. 10, No. 7, at 785, and therefore we cannot accept the appeal counsel's argument that the judgment in prior instance violates the Constitution.
2. Looking at the case from this standpoint, about 12 years had passed after the occurrence of the Incident and the Trial until the publication of the Work. In light of the fact that, during this period, the appellee was trying to reintegrate with society and build a new living environment, it must be said that the appellee clearly had an interest, worthy of legal protection, to keep the facts concerning his previous conviction undisclosed. What is more, the appellee had left his town and was living as just another citizen in a big city, and in this respect, the appellee is not in a position due to which he must accept the facts concerning his previous conviction being disclosed as a kind of reference for criticism or evaluation of his social activities, contrary to a person in a public position.
The appeal counsel argue that the Work was written for the purpose of emphasizing the advantage or democratic meaning of the jury system and trying to reveal the reality of the rule of Okinawa by the United States at that time, and to achieve this purpose, it was necessary to accurately describe the details of the Incident or the Trial. However, even taking such purpose into consideration, the necessity to reveal the real name of the appellee, who was one of the parties to the Incident, does not seem to have existed. The Work describes the process of jury deliberation in detail and this is its distinctive feature, but it cannot be regarded as s work that aims for rigorous research on historical facts. Actually, the appellant explained that the descriptions in the Work concerning the U.S. Marines' behavior before the incident were his creation based on conjecture from what he had heard from other people. Also with regard to the descriptions concerning the appellee, the appellee said that the part describing the scene in which, while seated at court, he regretted that he had come to Okinawa and looked back at life, etc. at that time, is not true to fact. Furthermore, the appellant used pseudonyms for all jury members, including himself, instead of using their real names, and hence, it cannot be construed that the abovementioned purpose of the Work could not have been achieved without using the real name only with regard to the appellee, one of the parties to the Incident.
The appeal counsel further argue that in addition to the abovementioned purpose, the Work was written with the aim of clarifying that the four defendants including the appellee were innocent, and therefore the use of the appellee's real name in the Work in connection with the Incident or the Trial does not constitute the disclosure of the facts concerning his previous conviction. However, the Work reveals the fact that, as a result of the deliberation by the jury including the appellant as its member, a verdict was rendered to find the four defendants including the appellee guilty of the crime of injury to D, and it also describes the fact that the evidence showing the relevance between the appellee and the incident, such as the fact that the appellee's sandals and shirt were stained with blood of the same type as the U.S. Marine's blood, had been submitted to the court. Furthermore, while the Work contains a description indicating that during the jury deliberation, there was an argument that both parties were to blame, it does not contain any description suggesting that there was an argument that the four defendants including the appellee should be acquitted on the grounds of self-defense. Thus, although the Work might give a strong impression that there was a large gap between the verdict rendered by the jury with regard to the four defendants including the appellee and the crimes for which they had been initially charged, and that the sentences given to them were heavier than the punishments commensurate with the verdict rendered by the jury, it cannot be understood as aiming to claim the appellee's innocence by arguing that the appellee had nothing to do with the Incident or that the acts of the four defendants including the appellee should be regarded as self-defense.
Taking into consideration all of the points mentioned above, we must say that when the Work was published, the appellee had an interest, worthy of legal protection, to keep the facts concerning his previous conviction undisclosed, whereas there is no reason to go so far as to justify the appellant having used the appellee's real name in the Work and thereby disclosing the facts concerning his previous conviction. The use of the appellee's real name in the Work by the appellant would have inevitably resulted in the disclosure of the facts concerning the appellee's previous conviction, and the appellant must have been able to ascertain whether or not it was appropriate to use the appellee's real name, and hence, we must say that the appellant cannot avoid liability in tort against the appellee.
3. According to what has been explained above, we can affirm as justifiable the determination of the court of prior instance that found the appellant to be liable in tort against the appellee. We cannot accept the appeal counsel's arguments.

Therefore, according to Articles 401, 95 and 89 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice ONO Masao
Justice SONOBE Itsuo
Justice SATO Shoichiro
Justice KABE Tsuneo
Justice CHIKUSA Hideo