2021.03.18

2020 (Kyo) 10

Minshu Vol. 75, No. 3

Decision concerning a person who is engaged in telecommunications business or has left office and the application by analogy of Article 197, paragraph (1), item (ii) of the Code of Civil Procedure

Case of appeal with permission against the ruling to dismiss with prejudice on the merits an appeal against an order to present an object to be inspected

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Tokyo High Court, Decision of February 12, 2020

1. A person who is engaged in telecommunications business or has left office may refuse to testify with regard to any fact that he/she has learned in the course of duty that is to be kept confidential through application by analogy of Article 197, paragraph (1), item (ii) of the Code of Civil Procedure.

2. A telecommunications carrier does not have the obligation to present a document or quasi-document on which information, including name and address, which contributes to identifying the sender of a communication sent by using a telecommunications facility it manages and for which he/she is not exempt from the duty of silence, is described or recorded, as an object for inspection, irrespective of the content of the communication.

(Concerning 1 and 2) Article 197, paragraph (1), item (ii) of the Code of Civil Procedure and Article 4 of the Telecommunications Business Act

(Concerning 2) Article 223, paragraph (1), Article 232, paragraph (1), and Article 234 of the Code of Civil Procedure


Telecommunications Business Act

(Protection of Secrecy)
Article 4 (1) The secrecy of communications handled by a telecommunications carrier must not be violated.
(2) A person who is engaged in telecommunications business must not disclose other persons' secrets which came to their knowledge while in service with respect to communications handled by a telecommunications carrier. The same applies even after that person has left office.

Code of Civil Procedure

Article 197 (1) In the following cases, a witness may refuse to testify:
(ii) a person who is or was a doctor, dentist, pharmacist, pharmaceuticals distributor, birthing assistant, attorney at law (this includes registered foreign lawyers), patent attorney, defense counsel, notary, or person engaged in a religious occupation is examined with regard to any fact learned in the course of duty that shall remain confidential;

(Order to Submit Documents)
Article 223 (1) If the court finds there to be grounds for a petition for an order to submit a document, it issues a ruling ordering the person in possession of the document to submit the document. In such a case, if the document contains any part that it is found unnecessary to examine or which cannot be found to be subject to the obligation to submit, the court may order the submission of the document excluding such part.

Article 232 (1) The provisions of Articles 219, 223, 224, 226, and 227 apply mutatis mutandis to the presentation or sending of an object for inspection.

(Preservation of Evidence)
Article 234 If the court finds circumstances to be such that, unless the examination of evidence is conducted in advance, it will be difficult to use the evidence, the court, upon petition, may conduct an examination of the evidence under the provisions of this Chapter.

The decision in prior instance is quashed, and the decision in first instance is revoked.

A petition for an order to present an object to be inspected filed by the adverse party is dismissed without prejudice.

The total costs of the appeal proceedings shall be borne by the adverse party.

Concerning reasons for appeal stated by the counsel for appeal, YOKOYAMA Tsunemichi, et al.

1. According to the case records, the development, etc. of this case is as follows.

(1) The adverse party is a stock company engaged in the business of developing, selling or otherwise handling images, etc., and the appellant is a stock company operating telecommunications business.

(2) The adverse party, which manages and operates a website pertaining to provision of video delivery service, etc., received an anonymous email containing an intimidatory expression (hereinafter referred to as the "Email") through a customer inquiry form that was available on the same website. The Email was sent by the using telecommunications facility the appellant manages.

(3) The adverse party argued that it plans to file an action to seek compensation for loss or damages against the sender of the Email (hereinafter referred to as the "Sender") and that there is a circumstance where it would become difficult for the adverse party to use an electronic or magnetic recording medium or document on which the name, address, etc. of the Sender (hereinafter information that contributes to identifying the sender of a telecommunication is referred to as "information about the sender") are recorded or described (hereinafter referred to as the "Recording Medium, etc.") as evidence unless it conducts examination of evidence thereon in advance. Based on this argument, as preservation of evidence prior to the filing of said action, the adverse party made a request for inspection with regard to the Recording Medium, etc. and also filed a petition for an order to present an object to be inspected against the appellant (hereinafter referred to as the "Petition").

2. The court of prior instance ruled that Article 197, paragraph (1), item (ii) of the Code of Civil Procedure is applied by analogy to a person who is engaged in telecommunications business, and then determined as summarized below and ruled that the Petition should be accepted.

Information about the sender recorded on or described in the Recording Medium, etc. does not fall under a secret worthy of protection and the appellant has the obligation to present the Recording Medium, etc. as objects for inspection, weighing the circumstances, such as the fact that the Email contains an obvious intimidatory expression, and the fact that information about the sender of the Email is essential for enforcing liability for compensation for loss or damages against the Sender, as well as disadvantage suffered by the Sender due to disclosure of the Recording Medium, etc. and effects on the appellant, etc. exerted thereby.

3. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1) Article 197, paragraph (1), item (ii) of the Code of Civil Procedure provides that a person who is or was a doctor, attorney at law, or person engaged in a religious occupation, etc. (hereinafter occupations listed in the same item are referred to as "statutory professional occupations" and such person is collectively referred to as a "person engaged in a statutory professional occupation, etc.") may refuse to testify if he/she is examined with regard to any fact that he/she has learned in the course of duty that is to be kept confidential. These provisions are considered to have granted a person engaged in a statutory professional occupation, etc. the right to refuse to testify, taking into account that such person who is in a statutory professional occupation handles the secrets of a client, etc. in the course of his/her duty and has the statutory duty of confidentiality to protect such secrets.

Article 4, paragraph (1) of the Telecommunications Business Act provides that "the secrecy of communications handled by a telecommunications carrier must not be violated." Paragraph (2) of the same Article provides as follows: "A person who is engaged in telecommunications business must not disclose other persons' secrets which came to /his/her knowledge while in service with respect to communications handled by a telecommunications carrier. The same applies even after that person has left office." These provisions are considered to provide that a person engaged in telecommunications business is to handle secrets related to the communications of the users of telecommunications in the course of his/her duty and to impose the duty of confidentiality on a person who is engaged in telecommunications business or has left office (hereinafter referred to as a "person engaged in telecommunications business, etc.") in order to protect such secrets. Based on this, it is necessary to make it possible for a person engaged in telecommunications business, etc. to refuse to testify if he/she is examined with regard to any fact that he/she has learned in the course of duty that is to be kept confidential, as is the case with a person engaged in a statutory professional occupation, etc.

Therefore, it is reasonable to consider that a person engaged in telecommunications business, etc. may refuse to testify with regard to any fact that he/she has learned in the course of duty that is to be kept confidential through the application by analogy of Article 197, paragraph (1), item (ii) of the Code of Civil Procedure.

(2) It is reasonable to consider that a fact "that is to be kept confidential" prescribed in Article 197, paragraph (1), item (ii) of the Code of Civil Procedure refers to a fact which is not known to the public and the secrecy of which is not only beneficial to a person who requested a person engaged in a statutory professional occupation, etc. to perform duties from a subjective perspective but also has benefits that are worthy of protection from an objective perspective (see 2004 (Kyo) No. 14, the decision of the Second Petty Bench of the Supreme Court of November 26, 2004, Minshu Vol. 58, No. 8, at 2393).

The purport of the protection of secrecy of communications under Article 4, paragraph (1) of the Telecommunications Business Act is considered to exist in making the guarantee of the freedom of expression effective by protecting the secrecy of communications and in also protecting privacy, given that communications are the essential means of promoting mutual understanding in social life. The users of telecommunications perform communications based on the trust that such secrecy of communications is protected in the telecommunications business, and it can be said that there is a great need for protection of this trust from a social perspective. As information about a sender is not the content of a communication itself but is included in the secrecy of communications, disclosure of such information should be considered highly likely to harm the trust of the users of telecommunications. As long as that is true, the sender of a telecommunication is considered to benefit from the secrecy of information about him/herself not only from a subjective perspective but also obtain benefits therefrom that are worthy of protection from an objective perspective, irrespective of the content of the relevant communication.

It is reasonable to consider that this point does not differ between the case where a person engaged in telecommunications business, etc. is examined with regard to information about a sender as a witness and the case where a petition for an order to present an object to be inspected is filed against a telecommunications carrier with regard to a document or quasi-document on which information about a sender is described or recorded.

For the reasons described above, it is reasonable to consider that a telecommunications carrier does not have the obligation to present a document or quasi-document on which information about the sender of a communication sent by using a telecommunications facility it manages and for which he/she is not exempt from the duty of silence, is described or recorded, as an object for inspection, irrespective of the content of the communication.

When this determination is applied to this case, according to the case records, it is clear that the appellant is not exempt from the duty of silence with regard to the information about the sender of the Email. Therefore, the appellant should be considered to have no obligation to present the Recording Medium, etc. as objects for inspection.

4. The determination of the court of prior instance different from the above contains a violation of laws and regulations that has clearly influenced the judicial decision. The arguments made by the counsel for appeal are well-grounded, and the decision in prior instance should inevitably be quashed without the need to make a determination on other arguments made by the counsel for appeal. According to the explanations made above, the decision in first instance should be revoked, and the Petition should be dismissed without prejudice.

Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya