2005.11.10

2003 (Ju) 281

Minshu Vol. 59, No. 9

Judgment concerning whether or not the act of photographing a person's face or appearance without consent should be deemed to be a tort

Case to seek damages

Judgment of the First Petty Bench, partially quashed and remanded, partially dismissed

Osaka High Court, Judgment of November 21, 2002

1. Any person has a legally protected personal interest not to have his/her face or appearance photographed without good reason, and whether or not an act of photographing a person's face or appearance without consent should be deemed to be a tort should be determined by examining whether or not the photographed person's personal interest has been injured beyond the tolerable limit in social life, while taking various factors into consideration such as the photographed person's social status, the the photographed activity, the place, purpose, manner, and necessity of photographing.

2. Where a weekly pictorial magazine's photographer, for the purpose of reporting the behavior of the suspect of a criminal case, photographed the suspect's face and appearance at the courtroom where the proceedings for the disclosure of the reasons for detention were held, if the photographer, secretly and without the court's permission, photographed the face and appearance of the suspect who was handcuffed and tied with rope at the waist, such act of photographing should be deemed to be a tort.

3. Although any person has a legally protected personal interest not to have illustrations of his/her face or appearance published without good reason, when determining whether or not the act of publishing such illustrations should be deemed to go beyond the tolerable limit in social life and to amount to a tort, consideration should be given to the fact that illustrations reflect the author's view or technique, and when they are published, they would be regarded as such.

4. The act of publishing, in a weekly pictorial magazine, illustrations that depict the defendant of a criminal case who is looking at the materials given by the party concerned at the courtroom or appears to be talking and gesticulating, cannot be deemed to be a tort.

5. The act of publishing, in a weekly pictorial magazine, illustrations of the defendant of a criminal case who is physically restrained by handcuffs at the courtroom, should be deemed to be a tort.

(Concerning 1 to 5) Articles 709 and 710 of the Civil Code, Article 13 of the Constitution; (Concerning 2) Article 215 of the Rule of Criminal Procedure

Article 709 of the Civil Code
A person who intentionally or negligently violates the right of another is bound to make compensation for damage arising therefrom.

Article 710 of the Civil Code
A person who is liable to compensate damage in accordance with the provisions of the preceding Article shall make compensation even for non-pecuniary damage, irrespective of whether such damage was caused to the person, liberty or reputation of another or to his property rights

Article 13 of the Constitution
All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 215 of the Rule of Criminal Procedure
(Restriction of photographing at the court of trial)
Photographing, recording or broadcasting at the court of trial shall be prohibited unless permitted by the court. However, this shall not apply if there are special provisions.

1. Paragraph 1(1) of the main text of the judgment of the second instance shall be quashed.
2. This case shall be remanded to the Osaka High Court with respect to the part mentioned in the preceding paragraph.
3. The remaining part of the jokoku appeal filed by Jokoku Appellant Company Y1 and Jokoku Appellant Y2 shall be dismissed.
4. Jokoku Appellant Company Y1 and Jokoku Appellant Y2 shall bear the cost of the jokoku appeal with respect to the preceding paragraph.

Concerning Ground III-2 for the petition for accepting the jokoku appeal argued by the attorneys for jokoku appeal TORIKAI Shigekazu, et al.
1. The outline of the facts determined by the judgment of the second instance is as follows.
(1) The jokoku appellee was arrested, detained and prosecuted for homicide, etc. in the curry-poisoning case that occurred in July 1998 in Wakayama City (this case shall hereinafter be referred to as the "Criminal Case"). The Criminal Case was an extremely serious case that attracted much public attention.
Jokoku Appellant Company Y1 is engaged in publishing books and magazines, and from 1981 to August 2001, it issued a weekly pictorial magazine named "FOCUS" (hereinafter referred to as the "Magazine"). Jokoku Appellant Y2 held the post of chief editor and issuer of the Magazine from January 1998 to August 2001. Jokoku Appellant Y3 was the representative director of Jokoku Appellant Company Y1 at the time of this case, in 1999.
(2) On November 25, 1998, the proceedings for the disclosure of the reasons for detention were held at the courtroom of the Wakayama District Court. The Magazine's photographer secretly brought a small camera into the courtroom, and for the purpose of reporting the jokoku appellee's behavior during the proceedings of the Criminal Case, photographed the jokoku appellee's face and appearance from the court gallery immediately after the closing of the trial, without the court's permission or the jokoku appellee's consent and without being seen by the court staff or the parties concerned (the photographs thus taken shall hereinafter be referred to as the "Photographs"). The Photographs show the appearance of the jokoku appellee who was handcuffed and tied with rope at the waist.
(3) On May 19, 1999, Jokoku Appellant Company Y1 published the Magazine's May 26 issue that included an article under the title of "X mocks court at first trial of curry-poisoning case: Can this 'Monster' be brought to justice?", which featured the Photographs (attached to the judgment of the first instance as Exhibit 1; hereinafter referred to as the "First Article"). The First Article contains statements that overstress the fact that the jokoku appellee was handcuffed and tied with rope at the waist.
(4) On August 11, 1999, the jokoku appellee filed a suit to seek compensation for non-pecuniary damage from Jokoku Appellant Y2 under Article 709 of the Civil Code and Jokoku Appellant Company Y1 under Article 715 of the said code, alleging that the jokoku appellants violated the jokoku appellee's right of portrait by taking the Photographs and publishing the First Article in the Magazine (this suit shall hereinafter be referred to as the "First Suit").
(5) On August 18, 1999, Jokoku Appellant Company Y1 published the Magazine's August 25 issue that included an article under the title of "To X who sued us based on right of portrait: How about pictures?", which contained three illustrations and the text describing the jokoku appellee's face and appearance at the courtroom during the proceedings of the Criminal Case (attached to the judgment of the first instance as Exhibit 2; hereinafter referred to as the "Second Article"). Among these illustrations, one of which was in the upper part and two were in the lower part of the two-page spread article (hereinafter collectively referred to as the "Illustration"), the one in the upper part depicted the jokoku appellee who was physically restrained by handcuffs and waist rope, and the two in the lower part depicted the jokoku appellee who was looking at the materials given by the party concerned and appeared to be talking and gesticulating respectively. The text of the Second Article contains expressions that insult or defame the jokoku appellee by reason that the jokoku appellee, who had been criminally charged, filed the First Suit.
(6) At the time of publication of the Second Article, Jokoku Appellant Y3 failed to establish a control system to prevent the occurrence of illegal acts in gathering news materials and reporting news in the Magazine. Therefore, there was gross negligence on the part of Jokoku Appellant Y3 in the course of performing the duties for having committed torts such as defamation against the jokoku appellee by publishing the Second Article.
(7) On December 6, 1999, the jokoku appellee filed a suit to seek compensation for non-pecuniary damage from Jokoku Appellant Y2 under Article 709 of the Civil Code, Jokoku Appellant Company Y1 under Article 715 of the said code, and Jokoku Appellant Y3 under Article 266-3 of the Commercial Code, alleging that the jokoku appellants violated the jokoku appellee's right of portrait and defamed and insulted the jokoku appellee by publishing the Second Article in the Magazine (this suit shall hereinafter be referred to as the "Second Suit"). The First Suit and the Second Suit have been consolidated into this case.

2. The court of the second instance accepted, in respect of the First Suit, the judgment of the first instance that upheld the jokoku appellee's claim for 2.2 million yen as compensation for non-pecuniary damage and legal fees and delay damages thereon, and in respect of the Second Suit, also upheld the jokoku appellee's claim to the extent to seek payment of 2.2 million yen as compensation for non-pecuniary damage and legal fees and delay damages thereon, on the following grounds.
(1) Even the suspect or defendant in a criminal case has a legally protected personal interest not to have his/her face or appearance photographed or not to have such photographs published without consent or good reason, and therefore the jokoku appellee's right of portrait, which is legally guaranteed, was violated by the act of taking the Photographs and publishing the First Article in the Magazine. However, even where an act of gathering news materials and reporting news eventually violated someone's right of portrait, such act may be justified if it is related to matters on public interest, it is intended exclusively for public interest, and it is conducted by an appropriate method in line with its purpose. These requirements should be assessed in a comprehensive manner by taking into account the extent to which they are satisfied, rather than merely examining whether or not each requirement is satisfied. The taking of the Photographs and publication of the First Article can be deemed to be related to matters on public interest and intended exclusively for public interest. However, the method employed to take the Photographs is inappropriate, and the text of the First Article is also inappropriate because it contains statements that overstress the fact that the jokoku appellee was handcuffed and tied with rope at the waist. Therefore, the act of taking the Photographs and publishing the First Article cannot be justified. Consequently, Jokoku Appellant Company Y1 and Jokoku Appellant Y2 shall be liable to damages for having taken the Photographs and published the First Article in the Magazine with the Photographs contained in the article.
(2) Whether a person's face or appearance is depicted by photographs or illustrations is not an essential issue that determines violation of the person's right of portrait. If it is easy to identify the person whose face or appearance is depicted by illustrations, such illustrations violate the person's right of portrait. The Illustrations violate the jokoku appellee's right of portrait because it is easy to identify that they depict the jokoku appellee's face and appearance. The Second Article is related to matters on public interest, but when viewed as a whole, it is intended to ridicule the jokoku appellee for having filed the First Suit. Therefore, the act of publishing the Second Article in the Magazine cannot be deemed to be intended exclusively for public interest, and the Illustration that violate the jokoku appellee's right of portrait cannot be justified. Considering that the Illustration violates the jokoku appellee's right of portrait and the text of the Second Article insults or defames the jokoku appellee, the jokoku appellants are liable to damages for having published the Second Article in the Magazine with the Illustration contained in the article.

3. The determination of the court of the second instance mentioned in (1) above can be accepted in its conclusion, but the determination mentioned in (2) above cannot be accepted for the following reasons.
(1) Any person has a legally protected personal interest not to have his/her face or appearance photographed without consent or good reason (see 1965 (A) No. 1187, judgment of the Grand Bench of the Supreme Court of December 24, 1969, Keishu Vol. 23, No. 12, 1625). However, in some cases, photographing a person's face or appearance may be allowed as a justifiable act in the course of gathering news materials, and whether or not an act of photographing a person's face or appearance without consent should be deemed to be a tort should be determined by examining whether or not the photographed person's personal interest has been violated beyond the tolerable limit in social life, while taking various factors into consideration such as the photographed person's social status, the photographed activity, the place, purpose, manner, and necessity of photographing.
Furthermore, it is reasonable to construe that any person also has the personal interest not to have the photographs of his/her face or appearance published without good reason, and if the act of photographing a person's face or appearance is deemed to be illegal, the act of publishing the resultant photographs should also be deemed to be illegal as violating the personal interest of the photographed person.
As mentioned above, when the Photographs were taken, the jokoku appellee was under detention as the suspect of the Criminal Case, which was attracting public attention, and the Photographs were taken for the purpose of reporting the jokoku appellee's behavior during the proceedings of the Criminal Case. However, the Magazine's photographer, without the court's permission under Article 215 of the Rule of Criminal Procedure, brought a small camera into the courtroom and secretly photographed the jokoku appellee's behavior. Such manner of photographing cannot be deemed to be appropriate. Furthermore, the jokoku appellee was photographed while handcuffed and tied with rope at the waist, and it was difficult to find any special need to photograph the jokoku appellee in such conditions. Although the Photographs were taken at the courtroom, which was open to the audience, the jokoku appellee appeared at the court as the suspect and did not appear voluntarily before the public with the expectation of being photographed. Taking these circumstances into consideration in a comprehensive manner, the act of taking the Photographs should inevitably be deemed to be a tort as violating the jokoku appellee's personal interest beyond the tolerable limit in social life. Therefore, the act of publishing the First Article in the Magazine with the Photographs illegally taken contained in the article, should also be deemed to be illegal as injuring the jokoku appellee's personal interest.
(2) It is also reasonable to construe that any person has a personal interest not to have illustrations of his/her face or appearance published without good reason. However, a photograph and an illustration differ in the following way. Photographs of a person's face or appearance reproduce, by chemical process, the person's face or appearance just as captured by the lens of a camera, and when they are published, they would be regarded as showing the person's face or appearance as it is. On the other hand, illustrations of a person's face or appearance reflect the author's view or technique, and when they are published, they would be regarded as reflecting the author's view or technique. Therefore, when determining whether or not the act of publishing illustrations of a person's face or appearance should be deemed to go beyond the tolerable limit in social life and to amount to a tort, such characteristics of illustrations must be taken into consideration.
As mentioned above, among the Illustrations, the two in the lower part of the article depict the jokoku appellee, who was looking at the materials given by the party concerned and appeared to be talking and gesticulating respectively. It is reasonable to construe that at present, in Japan, it is a generally and socially acceptable act to depict the defendant's face or appearance by illustrations and publish such illustrations in newspapers or magazines for the purpose of reporting the defendant's behavior in the courtroom, and the act of publishing the illustrations of such contents cannot be said to be violating the defendant's personal interest beyond the tolerable limit in social life. Therefore, the act of publishing the Second Article in the Magazine with these two illustrations contained in the article cannot be deemed to be a tort. However, as mentioned above, the illustration in the upper part of the article depicts the jokoku appellee's appearance when she was physically restrained by handcuffs and waist rope. The act of publishing the illustration of such contents insults and defames the jokoku appellee. Therefore, the act of publishing the Second Article in the Magazine with this illustration contained in the article should be deemed to be a tort as violating the jokoku appellee's personal interest beyond the tolerable limit in social life.
The court of the second instance, contrary to the above reasoning, held the jokoku appellants liable to damages on the grounds that the act of publishing the two illustrations in the lower part of the article was also illegal. Such determination of the court of the second instance contains an apparent violation of laws that has affected the judgment. The jokoku appellants' argument is well-grounded in this respect.

4. Consequently, Paragraph 1(1) of the main text of the judgment of the second instance should inevitably be quashed, and for further examination on the amount of losses suffered by the jokoku appellee, this case shall be remanded to the court of the second instance with respect to the said part. The remaining part of the jokoku appeal filed by Jokoku Appellant Company Y1 and Jokoku Appellant Y2 shall be dismissed as groundless.

Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice SHIMADA Niro
Justice YOKOO Kazuko
Justice KAINAKA Tatsuo
Justice IZUMI Tokuji
Justice SAIGUCHI Chiharu