2004.07.15

2003(Ju)1793

Minshu Vol. 58, No. 5

Judgment concerning whether a presentation of a legal view, for which defamation is being disputed, is deemed to be a presentation of an opinion or comment

Case to seek publication of an apology, etc.

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

Tokyo High Court, Judgment of July 31, 2003

A presentation of a legal view, for which defamation is being disputed, should be deemed to be a presentation of an opinion or comment rather than an allegation of a fact, even if the view relates to an issue on which the court may make judgment.

Articles 709 and 710 of the Civil Code, and Article 230-2(1) of the Penal Code Article 709 of the Civil Code A person who intentionally or by negligence violates the right of another is liable to compensate 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 230-2(1) of the Penal Code Where the act provided in Paragraph 1 of the preceding Article is found to relate to a fact of public interest and to have been conducted exclusively for the benefit of the public, punishment shall not be imposed if an inquiry is made into whether the fact is true or false and it is proved to be true.

The judgment of the second instance shall be quashed with respect to the part for which the jokoku appellants lost the case. The koso appeal filed by the jokoku appellee with respect to the part mentioned in the preceding paragraph shall be dismissed. The jokoku appellee shall bear the whole costs of the koso appeal and the jokoku appeal.

Concerning Ground 2 for the petition for accepting the jokoku appeal argued by the attorneys for jokoku appellant of 2003(Ju)No. 1793 NAKAMURA Yuji and TAKIZAWA Hidetoshi and Ground 2(2) for the petition for accepting the jokoku appeal argued by the attorneys for jokoku appellant of 2003(Ju)No. 1794 TAKESHITA Masami, YAMAMOTO Hiroki, and NASU Tomoe 1. The outline of the facts legally determined by the judgment of the second instance is as follows. (1) The jokoku appellee is a university lecturer and a researcher on the issue of what is called the "comfort women" ("jyugun ianfu"). He presents his opinion in books, lectures, and on his website as well as in magazine articles and on TV programs. The jokoku appellee holds the position that the government of Japan is responsible for this issue and therefore should apologize to former comfort women. Jokoku appellant of 2003(Ju)No. 1793 P (hereinafter referred to as "Jokoku Appellant P") is a cartoonist who has been writing, under pseudonym "P" (which shared the same pronunciation with true name, but "P" is written in Japanese syllabary characters), a cartoon series titled "Gomanizumu Sengen" (Arrogant-ism proclamations), including those titled "Shin Gomanizumu Sengen" (New arrogant-ism proclamations) that appeared in serial form in the magazine "SAPIO" and were publishedin book form (hereinafter collectively referred to as the "Gomanizumu Sengen Series"). He owns the copyright of this cartoon series and takes the position of criticizing people who argue that the government of Japan is responsible for the issue of the comfort women. (2) On November 1, 1997, the jokoku appellee published the first printing of the first edition of a book titled "Datsu Gomanizumu Sengen" (Post-arrogant-ism proclamations), which contained the parts criticizing Jokoku Appellant P's view on the issue of the comfort women, as indicated in List 3 attached to the judgment of the first instance, while extracting and using illustrations from the Gomanizumu Sengen Series without the authorization of Jokoku Appellant P (this book shall hereinafter be referred to as the "jokoku appellee's book"). The upper half part of the front cover of the jokoku appellee's book states, "This book is a requiem for the cartoonist P," and the lower half part indicates the main and sub titles of the jokoku appellee's book, "Datsu Gomanizumu Sengen" and "P no ianfu mondai" (The issue of comfort women for P). These titles are also indicated on the spine of the jokoku appellee's book. On the front cover, "Gomanizumu Sengen" is written in black whereas "Datsu" is written in red-tinged color and in a larger font size than "Gomanizumu Sengen." On the spine, "P" is written in red. The jokoku appellee's book is composed of the introduction entitled "Hajimeni: P he no rekuiemu" (Prologue: Requiem for PP), the table of contents, the main text, and the closing, "Atogaki" (Epilogue). It has 149 pages in total, in which pages 11 to 100 are under the title of "Datsu Gomanizumu Sengen" and pages 101 to 143 are under the title of "Ianfu k?geki no butaiura" (Factors behind the attack on the comfort women). The illustrations extracted from the Gomanizumu Sengen Series are used in the main text part entitled "Datsu Gomanizumu Sengen." A total of 57 illustrations (74 frames) are extracted, and in this part, extracted illustrations cover more than half a page on four pages. Among these extracted illustrations, blindfold bars are added on the figures in three illustrations, hand-written comments are added in one illustration, and the layout of the frames is changed in one illustration. The sources are indicated for all extracted illustrations except for one. In the Gomanizumu Sengen Series, each piece takes at least a two-page spread and usually takes eight pages. The illustrations extracted and used in the jokoku appellee's book are no more than parts of such pieces, and they cannot function as independent cartoons, although they may be enjoyed independently for their visual effects. The jokoku appellee extracted and used these illustrations in the jokoku appellee's book without the authorization of Jokoku Appellant P (the extraction conducted by the jokoku appellee shall hereinafter be referred to as the "Extraction"). In the part titled "Datsu Gomanizumu Sengen" of the jokoku appellee's book, the jokoku appellee refers to Jokoku Appellant P as "Yoshirin"(P's nickname), and writes in a frank tone using an accent similar to a Kansai accent. In the Gomanizumu Sengen Series, every piece follows a fixed pattern in which the ending shows an illustration with the same phrase "G?man kamashite yokadesuka?" (May I be a little arrogant?), and presents the summary of Jokoku Appellant P's opinion in the illustrations that follow. In the part titled "Datsu Gomanizumu Sengen" of the jokoku appellee's book, every chapter except for Chapter 22 follows a fixed pattern in which the summary of the jokoku appellee's opinion is indicated in the ending under the title of "G?man kamashite kamehenyaroka?" (Would you mind if I were a little arrogant?). The summary parts shown in the ending of chapters include many expressions that defame and make a mockery of Jokoku Appellant P as follows: "If nothing is done, Gomanizumu Sengen would become propaganda leaflets 'produced by Politician X and illustrated by P'" (Chapter 1); "It would be shame on you if mothers came to tell their children 'Do not draw cartoons, or you will be like Yoshi-rin!'" (Chapter 7); Yoshi-rin is too insensitive to the g?kan (rape) issue; your Gomanizumu Sengen might be called G?kanizumu Sengen in the future (Chapter 10); "You even lie to conceal who should be responsible for the issue. Maybe you are already dead!" (Chapter 18); "When something is described in a very simple form, people would laugh and say 'It's just a cartoon.' I never thought Yoshi-rin wrote such worthless cartoons, but now I have keenly realized that you have degraded yourself and become such a worthless cartoonist" (Chapter 19). Other parts of the jokoku appellee's book also defame and slander Jokoku Appellant P, stating, "This book is a requiem for the cartoonist P" and "The spirit of the cartoonist P is dead," or referring to Jokoku Appellant P as "a right-wing demagogue" or "a cartoonist employed by a particular politician." (3) After the publication of the jokoku appellee's book, Jokoku Appellant P drew "Shin Gomanizumu Sengen Dai 55 Sh?" (New arrogant-ism proclamations: Chapter 55) that contained the expressions indicated in List 1 attached to the judgment of the first instance (hereinafter referred to as the "Cartoon"). Jokoku appellant of 2003(Ju)No. 1794, Q Inc. (hereinafter referred to as the "Jokoku Appellant Company") published the Cartoon on November 26, 1997 issue of "SAPIO" and also published it as a book titled "Shin Gomanizumu Sengen Dai 5 Kan" (New arrogant-ism proclamations: Volume 5), which was issued on October 10, 1998. The Cartoon is under the subtitle of "Dai 55 Sh?: K?gi no ky?sei surikae ronja he no chinkon no sh?" (Chapter 55: Requiem for those who intentionally switch the focus of arguments in a broad sense of the term). It has eight pages in total, in which the first two pages criticize the Extraction as illegally infringing Jokoku Appellant P's copyright, and the other pages present counter criticisms and arguments against the jokoku appellee's criticisms and arguments against Jokoku Appellant P's view on the issue of military comfort women, which were presented in the jokoku appelee's book. In the expressions in the Cartoon, which are indicated as Expressions 2, 3, 7, 8, 9, 15, 18, and 20 in List 1 attached to the judgment of the first instance (hereinafter also collectively referred to as the "Expressions"), it is repeatedly described that the Extraction is "dorob?" (theft) and the jokoku appellee's book is a "dorob?-bon" (book written by a thief), and the jokoku appellee's portrait is drawn as a classical type of thief who carries a swag-bag and wears a black eye mask. Through these expressions, Jokoku Appellant P presents his legal view that the Extraction goes beyond the bounds of allowable quotation and illegally infringes Jokoku Appellant P's copyright (right of reproduction). This presentation of Jokoku Appellant P's view damages the jokoku appellee's social reputation. In the Cartoon, Jokoku Appellant P criticizes the Extraction conducted by the jokoku appellee as illegally infringing Jokoku Appellant P's copyright, as follows: Jokoku Appellant P first points out the fact that the jokoku appellee's book uses illustrations extracted from Jokoku Appellant P's work, the Gomanizumu Sengen Series, without the authorization of Jokoku Appellant P, and then quotes, without modification, the jokoku appellee's opinion mentioned in "Atogaki" (epilogue) of the jokoku appellee's book as follows: "I did this after consulting with experts. They say that partial quotation from a cartoon does not infringe the copyright thereof as long as there is necessary relevance between the quoted parts and the descriptions that criticize them. This may be called 'right of quotation' to correctly criticize cartoons." Against this opinion, Jokoku Appellant P argues that partial quotation accepted as practice in the industry is only for comments and texts, but the jokoku appellee, although quotation of comments and texts would suffice, extracted and used illustrations drawn by Jokoku Appellant P with the intention of increasing sales of his book. While quoting, without modification, the jokoku appellee's statement in "Atogaki" of the jokoku appellee's book, "Mr. P will not be so selfish as to prohibit me from freely quoting his cartoons, because he drew my portrait, as shown in page 94 of my book, without my permission," Jokoku Appellant KOBOYASHI argues back that a person's face is not a copyrightable work and therefore it is unreasonable to claim that a person who has been portrayed by a cartoonist should be allowed to quote the cartoonist's copyrighted works without permission. Furthermore, as for illustrations in which blindfold bars are added on the figures, Jokoku Appellant P presents his opinion that "such addition is malicious alteration of an artist's work and must not be allowed under the Copyright Law." Following this, an illustration of Jokoku Appellant P himself is presented with the comment, "I will consult a lawyer and take definite legal action against this infringement of copyright!" on the ground that such act should not be left ignored. (4) The Expressions relate to a fact of public interest and aim to make public the illegality of the Extraction, thereby protecting copyrights for cartoons including Jokoku Appellee P's. Therefore, they can be deemed to be exclusively for public interest. (5) Jokoku Appellee P filed a suit to seek injunction against publication of the jokoku appellee's book and damages from the jokoku appellee, the publisher of the jokoku appellee's book, and the publishing company concerned, arguing that the jokoku appellee's book infringed Jokoku Appellant P's right of reproduction as well as his right of preserving integrity, which was one of moral rights of author (this suit hereinafter referred to as the "Copyright Infringement Suit"). In this Copyright Infringement Suit, the court of koso appeal did not judge the Extraction to be infringing the right of reproduction but judged one of the extracted illustrations, in which the layout of the frames had been changed, to be infringing the right of preserving integrity, and therefore ordered the defendants to stop publishing the jokoku appellee's book that included the extracted illustration and to pay 200,000 yen as compensation for non-pecuniary damage. This judgment of the court of koso appeal became final and conclusive. 2. The jokoku appellee seeks damages and the publication of an apology, etc. from the jokoku appellants due to an unlawful act, arguing that the Expressions defamed the jokoku appellee. Against this, the jokoku appellants argue that the Expressions are not illegal because they should be regarded as a presentation of an opinion or comment rather than an allegation of a fact, and the contents thereof do not go so far as to insult the jokoku appellee or go beyond the bounds of opinion or comment. 3. The court of the second instance upheld the jokoku appelleee's claim to the extent to seek payment of part of compensation for non-pecuniary damage and publication in "SAPIO", in which the Cartoon had been published, of an apology indicated in the list of accepted apology attached to the judgment of the second instance in the manner as indicated in the list of accepted manner of apology, and dismissed other claims, on the following ground. (1) In this case, both parties do not dispute over the fact that the jokoku appellee conducted the Extraction without the authorization of Jokoku Appellant P, but they only dispute a question of law as to whether the Extraction can be regarded as legal quotation under Article 32(1) of the Copyright Law. Such a dispute should be settled by filing a suit to the court to obtain a publicly authorized and definite judgment made by the court. Actually, in the Copyright Infringement Suit filed by Jokoku Appellant P in relation with this case, the court judged the Extraction not to be infringing Jokoku Appellant P's right of reproduction, and this judgment became final and conclusive. Thus, even where an issue only involves a dispute over interpretation or application of law, if the court should make a publicly authorized and definite judgment on the disputed issue, such issue can be regarded as falling in the category of "a specific issue relating to another party that can be proved to be true or false by evidence," as pointed out in 1994(O)No. 978, judgment of the Third Petty Bench of the Supreme Court of September 9, 1998, Minshu Vol. 51, No. 8, at 3804. Therefore, it is reasonable to regard a presentation of a legal view relating to such issue as an allegation of a fact rather than a presentation of an opinion or comment. (2) As the court judged the Extraction not to be infringing Jokoku Appellant P's right of reproduction and this judgment became final and conclusive, the Expressions cannot be regarded as expressions of truth. (3) It is reasonable to construe that there were no such circumstances in which the court was likely to judge the Extraction as legitimate quotation and was entirely unlikely to judge it to be infringing the right of reproduction. The jokoku appellants could have easily become aware of such circumstances by consulting copyright law experts, and it should never have been difficult for them, the Jokoku Appellant Company as one of the leading publishing companies in Japan and Jokoku Appellant P as a famous cartoonist, to have such consultation, but they failed to do so. Given the facts mentioned above, the jokoku appellants cannot be deemed to have good reason to believe that it is true that the Extraction illegally infringes the right of reproduction. 4. However, the judgment of the second instance mentioned above cannot be accepted for the following reasons. (1) Where a person defames another by alleging a fact and such act is found to relate to a fact of public interest and to have been conducted exclusively for the benefit of the public, if the important part of the alleged fact is proved to be true, such act shall not be deemed to be illegal, and should there be no such proof at all, the person shall not be deemed to have conducted the act intentionally or by negligence if the person has good reason to believe that the important part of the fact is true (see 1962(O)No. 815, judgment of the First Petty Bench of the Supreme Court of June 23, 1966, Minshu Vol. 20, No. 5, at 1118, and 1981(O)No. 25, judgment of the First Petty Bench of the Supreme Court of October 20, 1983, Saibanshu Minji No. 140, at 177). On the other hand, where a person defames another by presenting an opinion or comment based on a fact and such act is found to relate to a fact of public interest and to have been conducted exclusively for the benefit of the public, if the important part of the fact, which is the basis of the opinion or comment, is proved to be true, such act shall not be deemed to be illegal unless it goes so far as to insult another or goes beyond the bounds of opinion or comment, and should there be no such proof at all, the person shall not be deemed to have conducted the act intentionally or by negligence if the person has good reason to believe that the important part of the fact is true (see 1985(O)No. 1274, judgment of the First Petty Bench of the Supreme Court of December 21, 1989, Minshu Vol. 43, No. 12, at 2252, and the judgment of the Third Petty Bench of the Supreme Court of September 9, 1998, mentioned above). As mentioned above, the requirement for holding a person liable for an unlawful act involving defamation depends on whether the disputed expression is an allegation of a fact or presentation of an opinion or comment, and therefore it is necessary to examine in which category the disputed expression is included. If the expression is understood as explicitly or implicitly arguing a specific issue relating to another that can be proved to be true or false by evidence, it is reasonable to construe the expression to be alleging a fact regarding the specific issue (the judgment of the Third Petty Bench of the Supreme Court of September 9, 1998, mentioned above). Issues that cannot be proved by evidence, such as criticisms and discussions regarding the value, judgment between right and wrong, and superiority of a thing, should be included in the category of presentation of an opinion or comment. (2) In accordance with the reasoning mentioned above, it is obvious that the validity of a legal view per se cannot be an object of proof and a presentation of a legal view cannot be regarded as a specific issue relating to another party that can be proved to be true or false by evidence. Therefore, a presentation of a legal view should be deemed to be included in the category of presentation of an opinion or comment rather than the category of allegation of a fact. As mentioned above, the requirement for holding a person liable for an unlawful act varies between defamation by alleging a fact and defamation by presenting an opinion or comment, and a person who has defamed another party by presenting an opinion or comment shall not be deemed to have committed an unlawful act, unless the contents of such opinion or comment, regardless of whether they are valid or reasonable, go so far as to insult another or go beyond the bounds of opinion or comment, because freedom to present an opinion or comment should be considered to be a core of freedom of expression, which is essential to democratic society, and therefore should be carefully protected. Whether or not the court may make judgment on an issue does not relate to whether the issue is included in the category of presentation of an opinion or comment or the category of allegation of a fact, and therefore it cannot be construed that a presentation of a legal view falls under the category of allegation of a fact or the like only because the court may make a publicly authorized judgment on the validity of the legal view for the purpose of settling a specific dispute. For this reason, it cannot be generally denied that a presentation of a legal view is, as a premise, construed to be an explicit or implicit argument of a specific issue and therefore it may include an allegation of a fact, but a presentation of a legal view per se cannot be deemed to be an allegation of a fact only because it relates to an issue on which the court may make judgment, and it should be regarded as a presentation of an opinion or comment. (3) The Expressions present a legal view that the Extraction by the jokoku appellee illegally infringes Jokoku Appellant P' s copyright, based on the fact that the jokoku appellee extracted illustrations from the Gomanizumu Sengen Series without the authorization of Jokoku Appellant P and used them in the jokoku appellee's book. In accordance with the reasoning mentioned above, it is obvious that such legal view falls under the category of presentation of an opinion or comment. According to the facts mentioned above, the Expressions relate to a fact of public interest and have been conducted exclusively for the benefit of the public, and the fact that is the basis of the Expressions should be deemed to be true. The Expressions cannot be deemed to go so far as to insult the jokoku appellee. The Cartoon correctly quotes the jokoku appellee's arguments and then states that the issue of whether or not the Extraction is illegal should be judged by the court. On the other hand, the jokoku appellee, in his book, harshly criticizes Jokoku Appellant P, with many expressions that defame and make a mockery of Jokoku Appellant P. In light of these facts, the Expressions made by Jokoku Appellant P cannot be deemed to go beyond the bounds of opinion or comment as counter arguments against the jokoku appellee's opinion in the jokoku appellee's book. Consequently, the judgment of the second instance, which judged it reasonable to regard the Expressions as alleging a fact and upheld part of the jokoku appellee's claim, contains an apparent violation of laws that has affected the judgment. The jokoku appellants' argument is well-grounded and therefore the judgment of the second instance shall inevitably be quashed with respect to the part for which the jokoku appellants lost the case. As mentioned above, the jokoku appellee's claim is groundless and the judgment of the first instance that dismissed it is justifiable. The koso appeal filed by the jokoku appellee shall be dismissed with respect to the said part. Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

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