2001.07.16

1999 (A) 1221

Keishu, Vol. 55, No. 5, at 317

Decision on a case involving: 1. The hard disk of a host computer of a so-called personal computer network on which obscene visual data has been recorded and stored, and obscene material as provided under Article 175 of the Criminal Code. 2. The meaning of "public display" as provided under Article 175 of the Criminal Code.3. The act of recording and storing obscene material on the hard disk of a host computer of a so-called personal computer network, and the public display of obscene material as provided under Article 175 of the Criminal Code.

Case involving public display of obscene material

Decision of the Third Petty Bench; dismissed

Osaka High Court, Judgment of August 26, 1999

1. The hard disk of a host computer of a so-called personal computer network on which obscene visual data has been recorded and stored constitutes obscene material under Article 175 of the Criminal Code.
2. "Public display" as provided under Article 175 of the Criminal Code means placement of the material in a manner whereby the obscene contents can be seen by many and unspecified persons. This does not require placement so that the obscene contents of the material can be immediately seen without any special intervening action.
3. The act of recording and storing obscene visual data on the hard disk of a host computer of a so-called personal computer network and its placement in a condition whereby many and unspecified members of the computer network are able, using their own personal computers to download the visual data, to reproduce and view the visual data using visual reproduction software constitutes "public display" of obscene material under Article 175 of the Criminal Code.

Criminal Code, Article 175

A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale.

Jokoku Appeal is dismissed.

Concerning the grounds for Jokoku Appeal of Appellant's attorneys KAWAGUCHI Naoya, et al.:

Regarding the claim of contradiction to legal precedence, the cases cited differ from the case on hand and are inapplicable to this case. All remaining claims, including claims of unconstitutionality, are in reality no more than claims of violations of laws and ordinances. None of these provides grounds for Jokoku Appeal under the Code of Criminal Procedure, Article 405.

In light of the arguments presented, this Court makes the following ex officio determination.

The facts have been determined as follows in the judgment of the Court of Second Instance. The defendant recorded and stored obscene visual data on the hard disk of the host computer of the so-called personal computer network that the defendant established and operated and thereby created a condition whereby many and unspecified members of the computer network were able, using their own personal computers, to gain access to the hard disk of the host computer via telephone lines, to download the obscene visual data and to reproduce and view the said data on their computer monitors using visual reproduction software.

First, the hard disk of the host computer on which the defendant recorded and stored obscene visual data should be interpreted to constitute obscene material as provided under Article 175 of the Criminal Code. Therefore, the Court of Second Instance is correct in reaching the same judgment on this matter.

Second, "public display" under Article 175 means placement of the material in a manner whereby the obscene contents can be seen by many and unspecified persons. We interpret this to mean that this provision is not necessarily predicated on placement in a manner whereby the obscene contents of the material can be immediately seen without any special intervening action. In order to reproduce and to view the obscene visual data which the defendant had recorded and stored on the hard disk of the host computer of the so-called personal computer network established and operated by the defendant, members of the computer network needed to use their own personal computers to download the visual data stored on the hard disk of the host computer and to use visual reproduction software. These operations are merely simple operations which normally must be undertaken in any process of reproducing and viewing visual data that has been recorded and stored on the hard disk of a host computer, and members were able to reproduce and to view obscene pictures with relative ease. Therefore, we conclude that the defendant had placed the visual data that had been recorded and stored on the hard disk of a host computer in a manner that could be seen by many and unspecified persons. This is interpreted to constitute "public display." Therefore, we affirm the judgment of the Court of Second Instance.

Therefore, in accordance with Article 414 and Article 386, Paragraph 1-3 of the Code of Criminal Procedure, this Court unanimously finds as stated in the Main Text of the Decision above.


Third Petty Bench of the Supreme Court

Justice OKUDA Masamichi
Justice CHIKUSA Hideo
Justice KANATANI Toshihiro
Justice HAMADA Kunio