1997.09.09

1994 (O) 978

Minshu Vol. 51, No. 8 at 3804

Judgment concerning whether or not a tort of defamation by way of a manifestation of an opinion or criticism based on a specific fact is established where the person who conducted such act has a reasonable ground to believe the said fact to be true

Case to seek damages

Judgment of the Third Petty Bench, quashed and remanded

Tokyo High Court, Judgment of January 27, 1994

1. In the case of defamation committed by manifesting an opinion or criticism based on a specific fact, where the act of manifesting the opinion or criticism relates to facts of public interest and was conducted solely for the benefit of the public, and the opinion or criticism does not constitute a personal abuse or otherwise go beyond the bounds of an opinion or criticism, if the person who conducted the said act has a reasonable ground to believe that the important part of the specific fact based on which the opinion, etc. was made is true, the person's intent or negligence to infringe the reported person's right or interest shall be denied.

2. Even where a newspaper article charged for defamation is written with the words and phrases that might make the article appear to be manifesting an opinion or criticism, if the said article can be construed, by taking into account the context as well as the knowledge or experience shared among ordinary readers at the time of publication of the article, to assert specific matters concerning another person of which existence or non-existence can be identified based on evidence or otherwise, the said article should be regarded as containing an allegation of a fact.

3. Even if a suspicion about someone's commission of a crime has been reported by newspapers and other news media repeatedly and widely known in society, such circumstances do not immediately allow the person who publicized that the criminal fact regarding the said suspicion actually existed, to assert that the person had a reasonable ground to believe the said fact to be true.

(Concerning 1 to 3) Article 709 and Article 710 of the Civil Code, Article 230-2, para.1 of the Penal Code

Article 709 of the Civil Code
A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.

Article 710 of the Civil Code
Persons liable for damages under the provisions of the preceding Article must also compensate for damages other than those to property, regardless of whether the body, liberty or reputation of others have been infringed, or property rights of others have been infringed

Article 230-2, para.1 of the Penal Code
(1) When an act prescribed under paragraph 1 of the preceding Article is found to relate to matters of public interest and to have been conducted solely for the benefit of the public, the truth or falsity of the alleged facts shall be examined, and punishment shall not be imposed if they are proven to be true

The judgment of prior instance is quashed.
This case is remanded to the Tokyo High Court.

Concerning the reasons for final appeal argued by the appeal counsel, KITAMURA Yoichi
I. In this case, the appellant of final appeal, X, seeks damages from the appellee of final appeal, alleging that the article placed in the newspaper published by the appellee defamed the appellant. The outline of the facts determined by the court of second instance is as follows:
1. The article indicated in the attachment of the judgment of prior instance (hereinafter referred to as the "Article") was placed on the front page of the evening paper published by the appellee, issued with the issue date of October 2, 1985. The Article is an eight-column article with headlines such as " 'X, the Devil, Would Be Sentenced To Death Penalty'---A, Yugurezoku Girl, Unveils Their Surprising Relationship," and " 'B Doesn't Know About His Stories…I'll Tell the Police If I'm Asked' ".
2. At the time of publication of the Article, the appellant was arrested and was under detention and interrogation on the suspicion of attempting to kill his wife C. The outline of the Article is as follows: (1) In the beginning, the Article reported that although the end of the period of detention of the appellant for the suspicion of attempt of homicide (October 3) was approaching and the interrogation by the investigation authorities was coming to an end, the appellant persistently continued to deny his involvement in the said crime. (2) Next, the Article reported that A, who engaged in the adult entertainment business under the name of Yugurezoku or Shin-Yugurezoku, said that she had had a very intimate relationship with the appellant since the beginning of 1985, with the following statements: " 'X is the kind of man who doesn't feel love for women. For him, women are like cigarettes or meals. A true devil. I think I won't see him any more. If he confessed his crime, he would definitely be sentenced to death penalty. Now he is as if having one foot in the grave.' Miss A says 'devil' and 'death penalty' flatly. Why can she speak like this? 'He told me the stories about his job, his money, and the case in question. These stories include those which he didn't tell even his wife B, so I wonder, ''Is it OK for him to tell me these stories?' I can't tell you about the details, but I will tell (the police) if I'm asked.' She spoke very meaningfully." (3) Following this, the Article reported the status of the investigation, stating that "the currently dominant view in the TMP is that X will be 'prosecuted while still denying the charge' ", and then ends with the following statements: "However, there is another view heard from outside, 'It is too soon to give up. Aim at the last day of detention.'; "An ex-public prosecutor of the Tokyo District Public Prosecutors Office…describes X as 'an intellectual and felonious criminal, an unprecedentedly tough suspect,' and says 'Find his weak point. Weakness is reflection of confidence and strength. X has gone from one woman to another, and he must be very confident in his technique in dealing with women. Furthermore, now that his wife may be the only emotional support for him, if the police induce his wife to betray him or pretend to have betrayed him, his confidence that <I can easily handle women> would be shaken, and he would be very shocked.' The ex-public prosecutor expects that X will be prosecuted without admitting his crime, if nothing is done. 'I think X has also expected so from the beginning, with a plan to request a bail after prosecution. Maybe he earned money over these two years in order to raise bail money. But the court will not release him on bail, never. This will give him a shock. However hard he endures police investigation, he will definitely be beaten by the disapproval of bail,' says the ex-public prosecutor."
3. Since 1984, many news reports about the appellant were publicized, addressing not only the suspicion of attempt of homicide but also the suspicion of killing his wife C after committing the attempt of homicide.

II. The appellant argues that he was defamed by some contents of the Article, namely, the headline "'X, the Devil, Would Be Sentenced To Death Penalty'" (hereinafter referred to as "Headline 1"), the headline "'B Doesn't Know About His Stories…I'll Tell the Police If I'm Asked'" (hereinafter referred to as "Headline 2"), and the statement in the main text of the Article, "An ex-public prosecutor of the Tokyo District Public Prosecutors Office describes X as 'an intellectual and felonious criminal, an unprecedented tough suspect' " (hereinafter referred to as the "Statement"), because all of them assert that the appellant has such personality as described therein.
Having examined this argument, the court of second instance dismissed the appellant's claim, holding as follows.
Headline 1, etc. all relate to the facts concerning the appellant's criminal act, which are the facts of public interest. Therefore, the appellee's liability for a tort of defamation by way of these contents of the Article cannot be established, on the following grounds.
1. Headline 1 does not explicitly depict a particular act or specific fact about the appellant, and nor can it be construed to implicitly depict them. Considering, in addition, that Headline 1 is indicated as being cited from A's comments, the headline should be deemed to be a manifestation of an opinion. Furthermore, it is obvious that this opinion is intended to manifest the evaluation on the appellant made by A based on the strong suspicion about the appellant's attempt of homicide, etc., which had already reported by newspapers and other news media repeatedly in detail and widely known in society before the Article was publicized, while taking into account the A's impression on the appellant that A received through her relationship with him. This opinion cannot be judged to be unjust or unreasonable.
2. Headline 2, although it is written with such expressions that might be construed to mean that A knew some facts or evidence with regard to the appellant's involvement in the said attempt of homicide and accomplishment of homicide, can be understood as mere silly talk from A by ordinary readers of the Article. Therefore, Headline 2 cannot be deemed to intensify the suspicion about the appellant's involvement in the said attempt of homicide and accomplishment of homicide, and even if it is taken into consideration together with Headline 1, Headline 2 cannot be deemed to have defamed the appellant.
3. The Statement does not explicitly depict a particular act or specific fact about the appellant, and nor can it be construed to implicitly depict them. Therefore, the Statement should be deemed to be a manifestation of an opinion. This opinion is intended to manifest the evaluation on the appellant made by a person who proclaimed him/herself to be an ex-public prosecutor of the Tokyo District Public Prosecutors Office based on his/her strong suspicion about the appellant's attempt of homicide, etc., which had already reported by newspapers and other news media repeatedly in detail and widely known in society before the Article was publicized, as well as the status of the investigation of the appellant, and also manifest the future prospect of the investigation. This opinion also cannot be judged to be unjust or unreasonable.

III. However, the determination of the court of second instance mentioned above cannot be affirmed, on the following grounds.
A tort of defamation of a person by way of a newspaper article can be established if the expression in dispute used in the article undermines an objective evaluation that the person receives in society in terms of his/her personal aspects such as moral character, virtue, fame, and reputation, irrespective of whether the article alleges a fact or manifests an opinion or criticism. In the case of defamation committed by alleging a fact, however, where the act of alleging a fact relates to matters of public interest and was conducted solely for the benefit of the public, if the alleged fact is proven to be true for its essential part, the said act is deemed not to be illegal. Even where the truthfulness of the alleged fact is not proven, if the person who conducted the act has a reasonable ground to believe the fact to be true, the person's intent or negligence to infringe the reported person's right or interest shall be denied (See 1962 (O) No. 815, judgment of the First Petty Bench of the Supreme Court of June 23, 1966, Minshu Vol. 20, No. 5, 1118, 1981 (O) No. 25, judgment of the First Petty Bench of the Supreme Court of October 20, 1983, Saibanshu Minji No. 140, 177). On the other hand, in the case of defamation committed by manifesting an opinion or criticism based on a fact, where the act of manifesting the opinion or criticism relates to matters of public interest and was conducted solely for the benefit of the public, if the alleged fact based on which the opinion or criticism is manifested is proven to be true for its essential part, the said act should be deemed to lack illegality, unless the opinion or criticism does not constitute a personal abuse or otherwise go beyond the bounds of an [ordinary] opinion or criticism (See 1980 (O) No. 1188, judgment of the Second Petty Bench of the Supreme Court of April 24, 1987, Minshu Vol. 41, No. 3, 490; and 1985 (O) No. 1274, judgment of the First Petty Bench of the Supreme Court of December 21, 1989, Minshu Vol. 43, No. 12, 2252). Even if the fact alleged as the basis of the opinion or criticism is not proven to be true, through comparison with the case of defamation committed by alleging a fact, it is appropriate to construe that if the person who conducted the act of manifesting the opinion or criticism has a reasonable ground to believe the allegedly underlying fact to be true, the person's intent or negligence to infringe the reported person's right or interest shall be denied.
Since defamation committed by alleging a fact and defamation committed by manifesting an opinion or criticism thus differ in terms of the requirements for establishing the liability for a tort, it is necessary to distinguish whether the expression in dispute alleges a fact or manifests an opinion or criticism. In this respect, whether or not the meanings or contents of an article undermine another person's reputation in society, should be determined according to the ordinary care and reading manner of ordinary readers of the article (See 1954 (O) No. 634, judgment of the Second Petty Bench of the Supreme Court of July 20, 1956, Minshu Vol. 10, No. 8, 1059), and this principle also applies when making the said distinction. More specifically, when a part of a newspaper article is charged for defamation, even where the said part of the article cannot immediately be construed, by understanding only the words and phrases used in such part in ordinary meanings, to assert specific matters concerning another person of which existence or non-existence can be identified based on evidence or otherwise, if the said part of the article can be construed, by taking into account the context as well as the knowledge or experience shared among ordinary readers at the time of publication of the article, to assert the said matters indirectly or euphemistically by using rhetorical exaggeration or emphasis, using figurative expressions or employing a form of hearsay report of a third party or inference, it is appropriate to regard the said part as alleging a fact. Furthermore, if the said part of the article avoids such an indirect citation but can be construed, by taking into consideration the context and other relevant factors, to assert the said matters implicitly as the basis for the statements in the said part, it is also appropriate to regard the said part as alleging a fact.
2. In this case, we can make a determination as follows:
(i) As for Headline 1, "X, the Devil, Would Be Sentenced To Death Penalty," when reading it in light of the remaining part of the headline and the main text of the Article, it is obvious that the headline is intended to indicate the essential point of A's comments. The Article also reports that (1) at the time of its publication, the appellant was under detention on suspicion of attempt of homicide and expected to be prosecuted in a few days but persistently continued to deny the charge, (2) A, who had previously had a very intimate relationship with the appellant, heard the appellant explain the "stories about the case in question," which deserve to be reported to the investigation authorities, and (3) based on these facts, A described the appellant by saying "A true devil... he would definitely be sentenced to death penalty. Now he is as though he has one foot in the grave." Taking into consideration these contents of the Article and the fact that at that time, the appellant was under suspicion not only about the attempt of homicide but also about the accomplishment of homicide, it is appropriate to construe that Headline 1, though written in the manner of citing A's comments, definitely assert that the appellant committed these crimes and allege this fact, and also publicize an opinion and criticism based on the said fact, thereby highlighting the viciousness of his act.
(ii) As for Headline 2, "B Doesn't Know About His Stories…I'll Tell the Police If I'm Asked," taking into consideration the facts mentioned in (i), it is appropriate to construe that Headline 2, in the manner of citing A's comments, also definitely assert that the appellant committed these crimes and allege this fact. The Article clearly indicates that A made the said comments based on the very intimate relationship between her and the appellant, which is explained later in the Article. In light of this and taking into consideration the facts that (1) the Article was placed on the front page of a newspaper issue, a news medium, and that (2) the Article does not contain any particular statement that appears to be negative to the reliability of the contents of A's comments, it seems that the readers of the Article generally considered the facts contained in A's comments to be true to some extent. Consequently, we should conclude that Headline 2 defamed the appellant.
(iii) As for the Statement, "An ex-public prosecutor of the Tokyo District Public Prosecutors Office describes X as 'an intellectual and felonious criminal, an unprecedentedly tough suspect'", taking into consideration the facts that (1) the Statement is a part of the statements reporting that based on the status of the investigation of the appellant on the suspicion of attempt of homicide, an ex-public prosecutor said that it was not impossible to have the appellant confess his crime on the said suspicion, and that (2) at the time of publication of the Article, the appellant was under suspicion not only about the attempt of homicide but also about the accomplishment of homicide, it is appropriate to construe that the Statement, in the manner of citing A's comments, definitely assert that the appellant committed these crimes and allege this fact, and also publicize an opinion and criticism based on the said fact, thereby highlighting the viciousness of his personality.
3. There may be room to construe that with regard to Headline 1 and the Statement, the judgment of prior instance meant to point out that the appellee had a reasonable ground to believe the fact based on which the appellee's opinion or criticism was manifested to be true for its essential part.
However, even if a suspicion about someone's commission of a crime has been reported by newspapers and other news media repeatedly and widely known in society, such circumstances do not immediately allow the person who publicized that the criminal fact regarding the said suspicion actually existed, to assert that the person had a reasonable ground to believe the said fact to be true. The fact that someone has actually committed a crime is completely different from the fact that someone is suspected of committing a crime, and needless to say, the fact that the suspicion has been frequently reported and publicly known cannot be immediate evidence to prove the criminal fact regarding the said suspicion.
In this case, as explained above, Headline 1 and the Statement should be construed to definitely assert that the appellant committed the attempt of homicide, etc. The court of second instance, by reason that the suspicion about the appellant's involvement in these crimes had already been reported by news media repeatedly and widely known to the public before the Article was publicized, denied the establishment of the appellee's liability for a tort of defamation, without examining whether or not the appellee had a reasonable ground to believe that the criminal fact regarding the suspicion truly existed. This conclusion cannot be affirmed.

IV. Consequently, the determination of the court of second instance that denied, contrary to this reasoning, the establishment of the appellee's liability for a tort with regard to the headlines, etc. is illegal because it has wrongly construed or applied laws and regulations, and such illegality apparently affects the conclusion of the judgment of prior instance. The appeal counsel's argument is well-grounded, and the judgment of prior instance should inevitably be quashed. For further examination, this case is remanded to the court of second instance.

Therefore, according to Article 407, para.1 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice SONOBE Itsuo
Justice ONO Masao
Justice CHIKUSA Hideo
Justice OZAKI Yukinobu
Justice YAMAGUCHI Shigeru