2010.03.15

2009 (A) 360

Keishu Vol. 64, No. 2

Decision concerning defamation committed by an individual Internet user, and his/her reasonable grounds for erroneously believing the facts that he/she alleged to be true

Case charged for defamation

Decision of the First Petty Bench, dismissed

Tokyo High Court, Judgment of January 30, 2009

1. In the case of an act of expression performed by an individual Internet user, similarly in cases where other means of expression are used, it is appropriate to construe that the establishment of the crime of defamation 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; the establishment of this crime should not be denied by applying less strict requirements.

2. Where an individual Internet user committed an act of defaming another while erroneously believing the facts that he/she alleged to be true, given the facts of the case (indicated in the judgment), e.g. some of the materials on which he/she based his/her alleged facts were created only one-sidedly, the user cannot be deemed to have had reasonable grounds, in light of reliable materials or basis, for holding such erroneous belief.

(Concerning 1 and 2) Article 230, paragraph (1), and Article 230-2, paragraph (1) of the Penal Code

The final appeal is dismissed.

The reasons for final appeal argued by the defense counsels, KITO Masaki, et al., including the reasons alleging violation of the Constitution and violation of a judicial precedent, are in effect assertions of unappealable violation of laws and regulations or errors in fact-finding, and none of these reasons for final appeal can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
Having examined the arguments, however, we make a determination by this court's own authority regarding whether or not an act of expression performed by an individual Internet user can constitute the crime of defamation.
1. The gist of the facts constituting the crime as found by the judgment in prior instance is as follows.
The accused attempted to defame Company Y (it changed its trade name from X Food Company as of July 1, 2002) which engages in the business of recruiting franchisees, etc. of a franchise restaurant "Chinese Noodle X" and providing them with management guidance, etc., and during the period from October 18 to November 12, 2002, he/she published comments at the residence of the accused located in Ota-ku, Tokyo, by using a personal computer and via the Internet, on the top page of the website entitled "Z Kansatsukai: Ikiikite Z" (meaning Z Watcher), which is hosted on disk space on the server provided by the Internet service provider; those comments contained false information to the effect that Company Y is a cult, such as "Crush X, a fake franchise chain," "If you eat at X, four to five percent of the charge you pay will be income of the cult," and the like; also on the page of said website which displayed an advertisement of Company Y's orientation meeting for job seekers, the accused continuously published comments, etc., below that advertisement, which contain information that implies that the company placed a false advertisement, such as "Hey, don't pretend to be a decent company. Job information magazines of this kind frequently list padded salaries, but this ad is extraordinarily far from the truth. It states neither the fact that a right-wing cult, Z, whose founder once acted as a broker of religious corporations, is the parent body of the company, nor the fact that the company forces franchisees to furnish their houses as security when opening stores, but it only says what will please potential franchisees, such as 'You can have your own store, you can be a store owner'"; the accused made these comments, etc. available for inspection by many and unspecified persons, and by doing so, the accused defamed Company Y by alleging facts in public (such act of the accused shall hereinafter be referred to as the "Act of Expression").
The judgment in prior instance stated that, although the accused performed the Act of Expression to publicize the facts relating to matters of public interest primarily for the benefit of the public, the accused has not proved the truth of the important parts of the alleged facts, namely, that Company Y is identical to Z, and that money flows from franchisees to Company Y and then to Z, nor can the accused be found to have had reasonable grounds for believing such facts to be true, and in conclusion, it found the accused to be guilty.

2. The defense counsels argue that the accused, as a citizen, performed the Act of Expression after carrying out an investigation that meets the standards required of an individual Internet user, and in consideration of the changes in the environment affecting acts of expression along with the development of the Internet, the accused should be deemed to have had reasonable grounds for believing the facts that he/she alleged to be true, and therefore the crime of defamation cannot be established against the accused.
However, information that is published on the Internet 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 in an instant 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 the reputation 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 of expression performed by an individual Internet user, similarly in other cases of expression, it is appropriate to construe that the establishment of the crime of defamation 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 the establishment of this crime should be denied by applying less strict requirements (see 1966 (A) No. 2472, judgment of the Grand Bench of the Supreme Court of June 25, 1969, Keishu Vol. 23, No. 7, at 975). In this case, according to the findings of the judgment in prior instance, the accused performed the Act of Expression while erroneously believing the facts that he/she alleged to be true based on materials such as the transcript of the commercial registry, commercial magazine articles, comments on Internet websites, and emails received from the person(s) who previously ran a franchise store of Company Y. The judgment in prior instance found the circumstances of the case, e.g. some of these materials were created only one-sidedly, the accused did not correctly understand the materials concerning the franchise system, and the accused never confirmed the persons concerned with Company Y about the relevant facts. Given these facts, the accused cannot be deemed to have had reasonable grounds, in light of reliable materials or evidence, for erroneously believing the facts that he/she alleged to be true, and in consequence, the determination of the court of prior instance that goes along with this reasoning is justifiable.

Therefore, according to Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice SHIRAKI Yu
Justice MIYAKAWA Koji
Justice SAKURAI Ryuko
Justice KANETSUKI Seishi
Justice YOKOTA Tomoyuki