2022.06.24

2020 (Ju) 1442

Minshu Vol. 76, No. 5

Judgment concerning the case in which the court ruled that where messages alleging a certain fact related to a person's privacy were posted on the information network via which users can post short texts using the internet, that person is eligible to demand the operator of that information network to delete the messages

Case seeking deletion of posts

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

Tokyo High Court, Judgment of June 29, 2020

Where messages alleging a certain fact related to a person's privacy, i.e. the person having been arrested for the alleged fact of crime of breaking into a building, were posted on the information network via which users can post short texts using the internet, even if the fact of the arrest is related to a crime that was committed at a place used by a large number of unspecified persons and cannot be regarded as a minor crime, given the following circumstances (1) to (4) as described in the judgment, that person's legal interest of ensuring that the fact of the arrest is not made public is found to outweigh the reasons for continuing to make that messages available for viewing by the public, and that person is eligible to demand the operator of that information network to delete the messages:

(1) about eight years passed after the arrest, and the sentence of the fine rendered to the person has ceased to have effect, and moreover, the original news articles on the fact of the arrest, which were reproduced in the messages, have already been deleted from the websites of the news organizations;

(2) the messages seem to have been posted in order to report breaking news concerning the fact of the arrest to the users of the abovementioned information network, and it can hardly be considered that the messages were posted with the expectation that they would be viewed for a long time;

(3) when a user searches on the abovementioned information network by the name of the abovementioned person, the abovementioned messages are indicated; and

(4) the abovementioned person does not have an official position.

(There is a concurring opinion.)

Articles 2, 198 and 199 of the Civil Code

Civil Code
(Standards for Construction)
Article 2　This Code must be construed so as to honor the dignity of individuals and the essential equality of both sexes.

(Actions for Maintenance of Possession)
Article 198　If a possessor is obstructed from possession, the possessor may claim for the discontinuation of the obstruction and compensation for loss or damage by filing an action for maintenance of possession.

(Actions for Preservation of Possession)
Article 199　If a possessor is likely to be obstructed from possession, the possessor may demand either the prevention of the obstruction or for the submission of security for the compensation for loss or damage by filing an action for preservation of possession.

1. The judgment in prior instance is quashed.

2. The appeal to the court of second instance filed by the appellee is dismissed.

3. The costs of the appeal to the court of second instance and the costs of the final appeal shall be borne by the appellee.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, TANAKA Kazuya

1. In this case, the appellant alleges that due to the tweets indicated in 5 to16, 18 and 19 of the list of posts attached to the judgment in first instance, which were posted on the website of Twitter (an information network via which users can post contents such as a message consisting of not more than 140 characters called tweets, using the internet) (hereinafter referred to as the "Tweets"), his interests including the interest of ensuring that facts related to his privacy are not made public without due reason have been infringed, and based on his personal rights or personal interests, the appellant demands the appellee: which operates Twitter, to delete the Tweets.

2. The outline of facts lawfully determined by the court of prior instance is as follows.

(1) In April 2012, the appellant was arrested for the alleged fact of crime of trespassing into a changing room of a women's bath house of an inn. In May 2012, the appellant was sentenced to a fine for the crime of breaking into a building, and paid the fine in the same month.

(2) The fact of the appellant's arrest for the abovementioned alleged fact of crime (hereinafter referred to as the "Fact") was reported on the day of the arrest, and the news articles thereof were posted on multiple news organizations.

On the same day, the Tweets were posted on unidentified persons' accounts on Twitter. All these Tweets alleged the Fact by reproducing part of the abovementioned news articles, and all of them except one contained the links to the webpages of the reproduced news articles. The original news articles, which were reproduced in the Tweets, have already been deleted from the websites of the news organizations.

(3) The appellant was a company employee at the time of the arrest mentioned above, but currently he lives by helping his father's business. The appellant married a few years after the arrest but has not told his spouse about the Fact.

(4) Twitter is used by an extremely large number of people around the world, and a huge number of tweets are posted. Twitter offers the function to search a tweet that meets the conditions input by a user, and with this function, when a user searches a tweet by the name of the appellant, the Tweets are indicated as the search results.

3. Based on the facts mentioned above, the court of prior instance determined as summarized below and dismissed the appellant's claim.

In light of such matters as the content of the services provided by the appellee to the users of Twitter and how Twitter is actually being used, it is appropriate to consider that the appellant is eligible to demand the appellee to delete the Tweets only when the result of comparing various circumstances relevant to the appellant's legal interest of ensuring that the Fact is not made public and those relevant to the reasons for continuing to make the Tweets available for viewing by the public is that the appellant's legal interest of ensuring that the Fact is not made public outweighs such reasons. In this respect, it cannot be said that it is clear that the appellant's legal interest of ensuring that the Fact is not made public outweighs such reasons.

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

(1) An individual's interest of ensuring that facts related to his/her privacy are not made public without due reason can be the subject of legal protection, and a person who has suffered infringement of such personal value is considered to be eligible to demand, based on his/her personal right, that the perpetrator should discontinue the act of infringement in order to eliminate the act of infringement that is currently being committed or prevent infringement that may occur in the future (see 2001 (O) 851, the judgment of the Third Petty Bench of the Supreme Court of September 24, 2002, Saibanshu Minji No. 207, at 243, and 2016 (Kyo) 45, the judgment of the Third Petty Bench of the Supreme Court of January 31, 2017, Minshu Vol. 71, No. 1, at 63). Given the fact that Twitter provides its users with a place for transmitting information and a means of acquiring necessary information from tweets, whether the appellant: by alleging that his privacy has been invaded due to the Tweets, is eligible to demand based on his personal right that the appellee, which continues to make the Tweets available for viewing by the public by operating Twitter, should delete the Tweets, should be determined by comparing various circumstances relevant to the appellant's legal interest of ensuring that the Fact is not made public and those relevant to the reasons for continuing to make the Tweets available for viewing by the public. These circumstances include the nature and content of the Fact, the range of people to whom the Fact would be communicated by means of the Tweets and the degree of concrete damage that the appellant would sustain, the appellant's position in society and influence, the purpose and significance of the Tweets, and the social situation at the time the Tweets were posted and the changes thereafter. It is appropriate to consider that if, as a result of such comparison, the appellant's legal interest of ensuring that the Fact is not made public outweighs the reasons for continuing to make the Tweets available for viewing by the public, the appellant is eligible to demand the deletion of the Tweets. The court of prior instance determined that the appellant is eligible to demand the appellee to delete the Tweets only when it is clear that the appellant's legal interest of ensuring that the Fact is not made public outweighs the abovementioned reasons, but even in consideration of the content of the services provided by the appellee to Twitter users and how Twitter is actually being used, such determination cannot be accepted.

(2) The Fact is a fact related to the appellant's privacy that he does not want others to know without due reason. On the other hand, the Fact is related to a crime that was committed at a place used by a large number of unspecified persons and cannot be regarded as a minor crime, and it can be said that at the time the Tweets were posted, the Fact was a fact related to public interest. However, about eight years passed after the arrest of the appellant until the time of conclusion of oral argument in the prior instance of this case, and the sentence of the punishment rendered to the appellant has ceased to have effect (the second sentence of Article 34-2, paragraph (1) of the Penal Code), and moreover, the original news articles, which were reproduced in the Tweets, have already been deleted. In view of these circumstances, the Fact has become less related to public interest. In addition, the Tweets were posted on the day the appellant was arrested, and under the restriction on the number of characters available, i.e., up to 140 characters, the Tweets alleged the Fact by reproducing part of the abovementioned news articles. Thus, the Tweets seem to have been posted in order to report breaking news on the Fact, and it can hardly be considered that the Tweets were expected to be viewed for a long time. Furthermore, although there are no such circumstances suggesting that the Tweets attract particular attention among a huge number of tweets, when a user searches tweets by the name of the appellant, the Tweets are indicated, and hence, it cannot be said that the Fact is less likely to be communicated to a person who is acquainted with the appellant and who does not know of the Fact. Moreover, the appellant lives by helping his father's business and he does not have an official position.

In light of these circumstances, it is appropriate to find that the appellant's legal interest of ensuring that the Fact is not made public outweighs the reasons for continuing to make the Tweets available for viewing by the public. Consequently, the appellant is eligible to demand the appellee to delete the Tweets.

5. The determination by the court of prior instance that differs from the above contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-ground as arguments to this effect, and the judgment in prior instance should inevitably be quashed. According to the explanation given above, the judgment in first instance that upheld the appellant's claim (the part of the first paragraph of the main text of the judgment in first instance which ordered the deletion of the Tweets indicated in 1 to 4 and 17 of the list of posts attached thereto has ceased to be effective due to the partial withdrawal of the action by the appellant in the prior instance) is justifiable, and the appeal to the court of second instance filed by the appellee should be dismissed.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice KUSANO Koichi.

The concurring opinion by Justice KUSANO Koichi is as follows.

I agree with the court opinion, and I would like to give some supplementary comments regarding how I reached this conclusion.

1. With regard to infringement of privacy, it is appropriate to consider that comparison should be made between various circumstances relevant to an individual's legal interest of ensuring that a fact related to his/her privacy is not made public without due reason and those relevant to the reasons for continuing to make that fact available for viewing by the public, and if the former outweighs the latter, the individual is eligible to demand the discontinuation of the act of infringement. In the section below, I will make this comparison in detail in line with the present case.

(1) The appellant's legal interest of ensuring that the Fact is not made public

It is clear that the Tweets infringe the appellant's privacy. It is true that the Fact is related to the crime that the appellant himself committed, but a person who is convicted is subsequently expected to reintegrate into society as a citizen, and has the interest of ensuring that the peace of his/her newly formed social life will not be harmed and his/her rehabilitation will not be hindered due to the fact related to his/her criminal record, etc. being made public (see 1989 (O) 1649, the judgment of the Third Petty Bench of the Supreme Court of February 8, 1994, Minshu Vol. 48, No. 2, at 149). Therefore, for the appellant who already paid the full amount of fine of 100,000 yen imposed by a summary order and has lived a sound life as a citizen thereafter, the possibility to restore a peaceful life as a result of the deletion of the Tweets can be regarded as an important interest that deserves legal protection. In this respect, the court of prior instance stated that "it has become less likely (for the appellant) to suffer concrete damage" on the grounds that the search function of Twitter is not used as frequently as that of Google or similar services. However, it is difficult to consider that the detriment suffered by the appellant whose peaceful life has been hindered due to continuing to fear that his family or acquaintance might see the Tweets at any time would be reduced to the level where the appellant could tolerate it only on the grounds that Twitter's search function is weak.

(2) The reasons for continuing to make the Tweets available for viewing by the public

The first point to consider is that the Tweets can be evaluated to be related to news reporting on what happened in society, and that the purpose of news reporting cannot be completed only by a single act of communication but the value of news reporting can be increased by making the news reports continuously accessible (hereinafter this added value is referred to as the "value derived from preserving news reports"). However, except when the criminal is a person who has an official position, such as a politician (this does not apply to the present case), the name, etc. of the criminal is not information that affects the social significance of the criminal case. Therefore, it can be said that even if such information that makes it possible to identify the criminal is excluded from the news reports to be preserved, this would hardly undermine the value derived from preserving news reports. Consequently, where the criminal does not have an official position, if there is any social significance in continuing crime news reports containing information that can identify the criminal (hereinafter referred to as "news reports containing the name of the criminal"), it can only be considered that this is because publishing news reports containing the name of the criminal may bring about unique benefits that are different from the value derived from preserving news reports. Accordingly, I will enumerate the possible benefits of news reports containing the name of the criminal and examine the values thereof individually.

A. The first benefit of news reports containing the name of the criminal can be found in the function of such news reports as a sanction. It is an undeniable fact that news reports containing the name of the criminal have inherent benefits of a sanction, such as general prevention, special prevention, and satisfaction of retributive emotions (the function of news reports containing the name of the criminal that brings about these benefits is hereinafter referred to as the "sanction function of news reports containing the name of the criminal"). However, as it is the fundamental principle under the constitutional order of Japan that the State has exclusive authority to impose sanctions for crimes, even if we affirm the benefits brought about by the sanction function of news reports containing the name of the criminal, the exercise of such function should be permitted only to the extent of adding a sanction to a statutory sanction imposed through the exercise of the judicial power. Consequently, in the situation where the execution of the punishment has been completed and the sentence of the punishment has ceased to have effect, as in the present case, there is no room or there is very little room, if any, to evaluate the benefits brought about by the sanction function of news reports containing the name of the criminal as the social interest that is subject to the comparison to be conducted when examining whether it is allowed to infringe the criminal's privacy.

B. The second benefit of news reports containing the name of the criminal can be found in the fact that by publishing the name of the criminal, the possibility that the criminal will further inflict harm on others can be reduced (the function of news reports containing the name of the criminal that brings about this benefit is referred to as the "social defense function of news reports containing the name of the criminal"). However, in some aspects, this benefit is basically incompatible with the judgment of value regarding the effect that an individual's interest of ensuring that a fact related to his/her privacy is not made public without due reason can be the subject of legal protection. This is because, if an individual aims to find self-fulfillment effectively in society, it is absolutely necessary for the individual to be able to control the outflow of information about him/herself, and this may be regarded as one of the core reasons to consider that privacy is an interest that deserves protection. Consequently, it is appropriate to consider that even if the benefit bought about by the social defense function of news reports containing the name of the criminal can be evaluated as the social interest that is subject to the comparison to be conducted when examining whether it is allowed to infringe the criminal's privacy, this is limited to cases where certain circumstances can be found, such as where there is a specific reason to fear the possibility that the criminal will repeat the crime, the trauma suffered by the victim of a serious case (or the victim's bereaved family) has not been cured, or there is the realistic possibility that the criminal will assume an official position. No such circumstances can be found in the present case.

C. As the third point, I should indicate the existence of people who find pleasure in imagining the mental or economic distress that the criminal or family thereof would suffer from the news reports containing the name of the criminal. It is a sad fact that human beings have the nature of finding sadistic pleasure at the misfortune of others (there is a social scientist who says that in Japan, the subculture that tolerates people complacently seeking "pleasure at the misfortune of others" has existed since ancient times). If news reports containing the name of the criminal easily spread on the internet, such nature of human beings may play more than a small role behind such tendency (hereinafter this nature of human beings or the pleasure brought about thereby is referred to as "negative external preference" using the term of social sciences, and the function of news reports containing the name of the criminal that brings about negative external preference is referred to as the "external preference function of news reports containing the name of the criminal"). However, it is obvious that negative external preference impedes the formation of an affluent, fair and generous society, and if so, negative external preference brought about by news reports containing the name of the criminal cannot be regarded as the social interest that is subject to the comparison to be conducted when examining whether it is allowed to infringe the criminal's privacy (it may be possible to say that the external preference function of news reports containing the name of the criminal has a certain social significance to the extent that it can satisfy citizens' retributive emotions; however, this is already taken into consideration in the section concerning the sanction function of news reports containing the name of the criminal).

2. According to the above, with regard to the parts of the statements in the Tweets in which the information that can identify the criminal, such as the name of the appellant, is described, it can immediately be concluded that the appellant's legal interest of ensuring that such information is not made public outweighs the reasons for continuing to make those parts available for viewing by the public. Furthermore, as mentioned in the court opinion, in light of the facts such as that the Tweets seem to have been posted in order to report breaking news on the Fact under the restriction on the number of characters available, i.e., up to 140 characters, it can be said, at the present moment, that with regard to all of the statements in the Tweets as well, the appellant's legal interest of ensuring that the Fact is not made public outweighs the reasons for continuing to make the Tweets available for viewing by the public. For these reasons, I agree with the court opinion.

Justice KUSANO Koichi

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice OKAMURA Kazumi