2003.03.14

2000 (Ju) 1335

Minshu Vol.57, No.3, at 229

Judgment upon the case concerning the standard of decision as to whether the case can be regarded as an inferable report that is prohibited by Article 61 of the Juvenile Law

Case to seek damages

Judgment of the Second Petty Bench, quashed and remanded to the second instance court

Nagoya High Court, Judgment of June 29, 2000

1. Whether a report can be regarded as an inferable report prohibited by Article 61 of the Juvenile Law, should be decided by a standard whereby an unspecified large number of ordinary people can infer that a person is the criminal of the case.
2. In the second instance court decision which determined that publication of an article in a weekly magazine describing the method of a crime and the personal history of the criminal, who was a juvenile at the time of the crime, using an assumed name similar to the real name, was in violation of Article 61 of the Juvenile Law after determining that there were no particular grounds for giving priority to the protection of social interests over the protection of juvenile's rights guaranteed by said Article, whereby liability for damages caused by violation of reputation and privacy was immediately approved, illegality can be seen due to the fact that the court did not individually and concretely examine and decide upon the existence of justifiable causes per violated interest.

Article 61 of the Juvenile Law and Article 709 and Article 710 of the Civil Code

Article 61 of the Juvenile Code
With respect to the juvenile who has been tried in a Family Court or a person against whom a public action has been instituted on a crime the person has committed while a juvenile, such accounts or photographs as to enable other persons to infer that the person is the criminal involved in the said case, from the person's name, age, occupation, dwelling place, looks, etc., therein shall not be published in newspapers or other publications.

Article 709 of the Civil Code
A person who violates intentionally or negligently the right of another is bound to make compensation for damage arising therefrom.

Article 710 of the Civil Code
A person who is liable in compensation for damages in accordance with the provisions of the preceding Article shall make compensation therefore even in a respect of a non-pecuniary damage, irrespective of whether such injury was to body, liberty, or reputation of another or to property rights of another.

The part of the judgment of the second instance court where the jokoku appellant lost shall be quashed.
Said part shall be remanded to the Nagoya High Court.

Concerning Reason No.1 for the jokoku appeal by the jokoku appeal attorney KOGA Masayoshi

1.This is a case where the jokoku appellee brought a lawsuit for damages caused by an unlawful act against the jokoku appellant, claiming that the reputation and privacy of the jokoku appellee was violated by an article in a weekly magazine published by the jokoku appellant.
Following is the summary of the facts determined by the second instance court.

(1) The jokoku appellee (born in October 1975) is the accused for which a public action has been instituted and who has been involved in a criminal trial for 4 crimes committed consecutively including murder, murder on occasion of robbery and abandonment of a corpse, in conspiracy with an adult and other juveniles who were aged 18 and 19 years at the time of the crimes, during the period from September to October of 1994.
The jokoku appellant is a corporation publishing books and magazines, which publishes a weekly magazine entitled "Shukan Bunshun."

(2) The jokoku appellant published an article entitled "Cruel 'Juvenile criminal'" and "Exclusive publication of notes at trial" that centered around descriptions of the feelings of the victim's parents and observations of court proceedings in the July 31, 1997, issue of the "Shukan Bunshun," released while the criminal proceedings with respect to each of the above cases were being carried out in the Nagoya High Court, which is cited as exhibit 2 of the judgment of the first instance court (hereinafter referred to as "the article of the case".) Part of the article describes the jokoku appellee's behavior at court, aspects of the crimes, and using an assumed name, the jokoku appellee's personal history and associations are given.

2. The second instance court decided as follows, determining that the claim for damages by the jokoku appellee should be partially accepted.

(1) The assumed name A', which was used in the article of the case, is similar to the real name A of the jokoku appellee at the time the article of the case was published, therefore, based upon social convention, it is difficult to accept that the identity was kept secret through the use of the assumed name. The article of the case describes facts such as date of birth, birthplace, history of delinquency, and associations that are the same as the personal history of the jokoku appellee, therefore, a specified large number of readers who are acquainted with the jokoku appellee, and an unspecified large number of readers in the local community where the jokoku appellee has been living can recognize the similarity between A' and the jokoku appellee, by which it is reasonable to infer that the real identity of the assumed name is the jokoku appellee.

(2) Article 61 of the Juvenile Law prohibits reports of information on juvenile cases where the perpetrator can be inferred (hereinafter referred to as "an inferable report"), by which it aims to protect the constitutional right of juveniles, which is the right to grow up soundly in the development process of a juvenile, and the protection of reputation and privacy as a juvenile. When a person reports the real name of a juvenile in contravention of said article, the person must assume responsibility for tort against them, for the abuse of human rights as indicated by Article 709 of the Civil Code.

(3) Differing from reports on adult criminal cases, an inferable report that contravenes Article 61 of the Juvenile Law is not justifiable, even if it is true, relates to the public interest, and it is reported for the purpose of serving the public interest. It is reasonable to interpret it as being justifiable and immune from responsibility only in cases where there are special circumstances to recognize that much importance should be put on a request to protect social interests over the protection of juvenile rights or their legal interests.

(4) The article of the case is an inferable report that is prohibited by Article 61 of the Juvenile Law and there is no evidence of special circumstances to recognize that great importance should be put on a request to protect social interest over the rights or interests of the jokoku appellee who was 18 years of age at the time of the incident, to not be inferred as the criminal involved in the said case, therefore, the jokoku appellant, who published the article in a weekly magazine is not exempt from tort liability.

3. However the above decision of the second instance court cannot be accepted. The reasoning for this opinion is as follows:

(1) It is not clear from the text, whether the original judgment reached the conclusion by regarding that the jokoku appellee's violated interests are: 1 the jokoku appellee's reputation and privacy, and therefore, approved the tort liability of the jokoku appellant, 2 or whether in addition to these rights, "the right to grow up soundly in the development process of a juvenile" determined by the second instance court is also included in the appellee's violated interests.
However, it is evident from the record that the jokoku appellee has been consistently claiming that the interest that was violated by the article of the case was 1 , reputation and privacy of the jokoku appellee, not the right of 2 .

Considering the process of examination by the second instance court, it is the duty of this instance court to examine the case and make a decision on the assumption that the decision of the second instance has been made for the reason of violating the right of 1 .

(2) The jokoku appellee claims that due to the article of the case, for those readers who could infer that A' was the jokoku appellee of the case, information indicating the jokoku appellee as the person who violated the crime of indicted facts (herein after referred to as "criminal information") and a detailed information on the jokoku appellee's personal history and associations (hereinafter referred to as "history information") was published. Therefore, the jokoku appellee claims that the reputation and privacy was violated. Both the criminal information and history information that was stated in the article of the case should be regarded as information that defames the jokoku appellee and regarded also as information concerning privacy that the jokoku appellee does not want others to know without reason. Those who are personally acquainted with the jokoku appellee or those who know the jokoku appellee's criminal information or personal history can infer that the article of the case is related to the jokoku appellee from their given knowledge, and it is undeniable that such persons could be among the readers of the article of the case.

Therefore, the decision of the second instance court, which determined that the act of publishing the article of the case defames the jokoku appellee and violates privacy of the jokoku appellee, can be approved to a certain extent.

Meanwhile,[Summary 1]in order to decide whether a report is regarded as an inferable report prohibited by Article 61 of the Juvenile Law, it should be determined by a standard whereby an unspecified large number of ordinary people can infer the identity of the criminal of the case. In the article of the case, with respect to the jokoku appellee, an assumed name was used that was similar to the jokoku appellee's real name at the time, and there were such descriptions as of the jokoku appellee's personal history, however, there was not a sufficient fact prescribed to identify the jokoku appellee. Therefore, it cannot be said that an unspecified large number of ordinary people could infer the identity of the criminal of the case as the jokoku appellee from the article of the case. In the end, the article of the case does not contravene Article 61 of the Juvenile Law.

(3) Even in a case where the article of the case contains information defaming the jokoku appellee and violating the jokoku appellee's privacy, the constitution of tort by the publication of the article of the case by the jokoku appellant should be individually and concretely decided upon, examining the existence of justifiable causes per violated interest. That is, with respect to defamation, so long as an act contains facts concerning the public interests, and it aims to protect the public interests, when the important part of the alleged fact proves true, or even if it does not prove true, when there is a reasonable reason for the person who conducts the acts to believe it true, it does not constitute tort. (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.) In this case, it is also necessary to individually and concretely examine these points. With respect to the violation of privacy, by weighing up the legal interest of not publishing the facts against the reasons for publishing them, and when the former can be regarded as superior to the latter, tort is constituted (see 1989 (O) No.1649, judgment of the Third Petty Bench of the Supreme Court of February 8, 1994, Minshu Vol.48, No.2, at 149). Therefore, it is necessary to individually and concretely examine the circumstances concerning the following legal interest of not publishing the facts and reasons for publication, and then make a decision after weighing up: the age and the social status of the jokoku appellee at the time of publishing the article in the weekly magazine, the content of the crime, the scope of distribution of information on the jokoku appellee's privacy, the extent of the damage suffered by the jokoku appellee, the purpose and significance of the article of the case, social circumstances at publication, and the necessity of publishing the information in the article.

(4) [Summary 2]In contrast to the above understanding, the second instance court approved the tort liability of the jokoku appellant, assuming that the article of the case contravenes Article 61 of the Juvenile Law, and determined that the interpretation should be that illegality can only be exempted under special circumstances, that is, when there is an apparent necessity to protect social interests, and those interests outweigh the rights or legal interests of the juvenile who is to be protected by Article 61, however, there are no special circumstances for this case and the court didn't examine and decide the individual and concrete circumstances that were pointed out in the above (3). In the decision of the second instance court, as a result of unsatisfactory examination, apparent violation of laws can be seen which has affected the judgment. Therefore, the line of argument No.1-2 can be accepted because it claims this point, and the part of the judgment of the second instance court where the jokoku appellant lost shall unavoidably be quashed.

In the end, in order to examine the case further, said part shall be remanded to the second instance court.

From all of the above, the judgment was rendered in the form of the main text by the unanimous consent of the Justices .

Justice KITAGAWA Hiroharu
Justice FUKUDA Hiroshi
Justice KAMEYAMA Tsugio
Justice KAJITANI Gen
Justice TAKII Shigeo