2014.11.25

2013 (A) 510

Keishu Vol. 68, No. 9

Decision concerning the meaning of the term "distribution" as referred to in the second sentence of Article 175, paragraph (1) of the Penal Code

Case charged for transmission and distribution of electromagnetic records of obscene content, etc., and for possession of electromagnetic records of obscene content for the purpose of distribution of the same for fee

Decision of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of February 22, 2013

1. The term "distribution" as referred to in the second sentence of Article 175, paragraph (1) of the Penal Code means causing electromagnetic records or other types of records to exist on recording media of many and unspecified persons.

2. The act of causing data files of obscene videos, etc. to be recorded and stored on the recording media of many and unspecified customers by transmitting said data files with the use of the distribution website which is equipped with a function to transmit data automatically in response to the downloading operations performed by customers constitutes "distribution" of electromagnetic records of obscene content as referred to in the second sentence of Article 175, paragraph (1) of the Penal Code.

(Concerning 1 and 2) Second sentence of Article 175, paragraph (1) of the Penal Code

Penal Code
(Distribution of Obscene Objects)
Second sentence of Article 175, paragraph (1)
The same applies to a person who distributes electromagnetic records or any other records of obscene content through transmission of telecommunications.

The final appeal is dismissed.

The reasons for final appeal argued by the defense counsel, TSURUTA Misaki, are assertions of unappealable violation of laws and regulations, 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.
1. According to the findings of the judgment in prior instance and of the judgment in first instance affirmed by the former, as well as the case records, the outline of the facts of the case is as follows. (1) The accused, who resides in Japan, jointly with his/her accomplices, who reside in Japan or in the United States, operated a fee-based data distribution website in the Japanese language in a manner that data files of obscene videos, etc. created in Japan are sent to the accomplices in the United States, who then record and store these data files on the server computer set up in the United States, so as to distribute said data files for fees by causing many and unspecified customers, mainly Japanese, to perform operations via the Internet and download said data files. In July and December 2011, customers in Japan, via said distribution website, downloaded data files of obscene videos, etc., and recorded and stored the files on the personal computers set up in Japan. (2) In May 2012, the accused and others stored data files of obscene videos, etc. on DVDs and hard discs at their office in Tokyo, with various objectives that included securing backups in preparation for the abovementioned fee-based distribution of data files.

2. The defense counsel argues that: [i] the data transfer from the server computer to customers' personal computers was carried out by the customers' act of downloading and receiving the data and it cannot be regarded as the act of distributing the data performed by the accused and others, and moreover, since the acts that may be considered to have been performed by the accused and others, i.e. setting up and operating said distribution website, were performed outside Japan, the accused and others do not meet the definition of "anyone who commits a crime within the territory of Japan" as prescribed in Article 1, paragraph (1) of the Penal Code, and thus the accused may not be held to have committed the crime of transmission and distribution of electromagnetic records of obscene content, etc.; [ii] accordingly, as the storage of data files of obscene videos, etc. also cannot be found to have been performed for the purpose of distributing these files in Japan, the accused also may not be held to have committed the crime of possession of electromagnetic records of obscene content for the purpose of distribution of the same for fee.

3. As we examined the case, the term "distribution" as referred to in the second sentence of Article 175, paragraph (1) of the Penal Code may be interpreted as meaning causing electromagnetic records or other types of records to exist on recording media of many and unspecified persons.
According to the facts mentioned above, the abovementioned distribution website operated by the accused and others was equipped with a function to transmit data automatically in response to the downloading operations performed by customers via the Internet, and thus the operations by customers did nothing more than trigger the transmission as intended by the accused and others, and therefore the accused and others should be held to have transmitted data from the server computer to customers' personal computers in response to the operations by customers. Consequently, the act of causing data files of obscene videos, etc. to be recorded and stored on the recording media such as personal computers of many and unspecified customers by transmitting said data files with the use of the distribution website which is equipped with the function to transmit data automatically in response to the downloading operations performed by customers, constitutes "distribution" of electromagnetic records of obscene content as referred to in the second sentence of Article 175, paragraph (1) of the Penal Code, even in cases where said transmission of data files is triggered by the downloading operations by customers.
Also given the facts mentioned above, it is obvious that the accused and others committed the crime prescribed in the second sentence of said paragraph within the territory of Japan and that they had the purpose as provided in paragraph (2) of said Article.
Consequently, the determination of the court of prior instance is justifiable as it found the accused to have committed both the crime of transmission and distribution of electromagnetic records of obscene content, etc. and the crime of possession of electromagnetic records of obscene content for the purpose of distribution of the same for fees.

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 OTANI Takehiko
Justice OKABE Kiyoko
Justice OHASHI Masaharu
Justice KIUCHI Michiyoshi
Justice YAMASAKI Toshimitsu