Companies have been increasingly facing reputational damage from defamatory posts on the Internet. In Japan, there are generally two possible actions that can be taken by such companies to respond to such defamatory posts. The first is to have the defamatory post removed by demanding that the administrators of the subject social networking services or websites (the "content providers") delete the defamatory posts. The second is to file a direct lawsuit against the individual responsible for such posts (the "sender") by first demanding that the content provider or the internet service provider ("internet provider") disclose the identification information of such sender. An overview of these responsive actions is provided below.
I. Demand for Deletion of the Defamatory Posts
A demand for the deletion of a defamatory post is based on a violation of the claimant's moral rights. There are no substantive rules governing this right to demand deletion.
Initially, a request for the deletion of a defamatory post is submitted to the content provider outside of a court proceeding, typically via an email or an online form. However, it is up to the content provider to voluntarily comply with such request.
On May 10, 2024, a law amending the Provider Liability Limitation Act was enacted. This amendment imposes obligations on large platform operators, such as responding to requests for deletion within a certain period and establishing and publishing deletion criteria. With this amendment, the name of the law will change from the Provider Liability Limitation Act to the Information Distribution Platform Act. This new law is scheduled to take effect within a year. Due to concerns about the potential chilling effect on freedom of expression, this new law does not require large platform operators to delete defamatory posts. Instead, it allows each operator to decide whether to comply with a request for deletion.
If the content provider refuses to delete the subject post, the claimant may choose to file a court action.
Typically, the claimant would file a petition for a provisional disposition order. If successfully obtained, the provisional disposition order would temporarily establish a situation similar to where the claimant had already won the lawsuit, even before the formal trial. During this proceeding, the court will make a decision within a shorter time frame compared to a full trial. In most cases, upon receiving a provisional disposition to delete a post, the content provider will agree to delete it and not contest the illegality of the post in the formal trial.
To grant an order for provisional disposition for the deletion of a defamatory post, the following two factors would be considered by the court:1
(a) The right to be preserved; and
(b) Necessity of the preservation.
Regarding the right to be preserved, the claimant must make a prima facie showing of the harm of the post on the social reputation thereof and the absence of any factor that would negate the illegality of the post.
The illegality of the post would be negated if all of the following three requirements are satisfied: (i) the content of the post relates to the public interest; (ii) the post was made solely for the purpose of serving the public interest; and (iii) the facts disclosed in the post are true. Therefore, the claimant just needs to make a prima facie showing that at least one of the three requirements in items (i) to (iii) is not satisfied.
In the case of a defamation on the Internet, the requirements in items (i) and (ii) above can usually be met. Therefore, the requirement in item (iii) would often be the only issue in dispute. When considering whether or not the facts in the post are true, it is important to consider that, in general, there are two types of defamatory posts: posts that indicate facts and those that express an opinion. For example, the post, "The hospital made a prescribing error," is stating a fact, while the post that, "The quality of service is poor" or that "the food is tasteless," is expressing an opinion.
For a fact-based defamation, the claimant must allege and make a prima facie showing that the fact in the post is not materially true. In the case of an opinion-based defamation, the claimant must allege and make a prima facie showing that the underlying facts of the post are not materially true and that the post deviates from the scope of a fair opinion or commentary, such as it constituting a personal attack. Regarding the necessity of the preservation, the claimant needs to allege and make a prima facie showing that the preservation of the subject right is necessary to avoid any substantial loss or imminent danger to the claimant.
II. Demand for Disclosure of the Sender's Identification Information
To pursue a claim for damages directly against the sender, the claimant must obtain the sender's identification information, and the most effective way to demand the disclosure of such information is to make such demand upon both the content provider and the internet provider. The substantive legal basis therefor is outlined in the Provider Liability Limitation Act. 2
Previously, to identify a sender on the website where the posts were made anonymously, the claimant must demand that the content provider disclose the IP address, time stamp, etc., of the post, then use such information to identify the internet provider used by the sender, and then demand that the internet provider disclose the sender's address, name, and other information. In the past, it was common to use the provisional disposition proceedings to make these two demands. However, the revised Provider Liability Limitation Act, which took effect on October 1, 2022, introduced a new procedure that allows both demands to be made in a single court proceeding.
Under this new procedure, upon petition by the claimant, the court may order the content provider to provide the claimant the name of the internet provider associated with the IP address, etc.,
"Information Provision Order").3 This would then enable the claimant to initiate proceedings against the internet provider without waiting for an order compelling the content provider to disclose the IP address, etc.
In addition, when the claimant files a petition demanding that the internet provider disclose the sender's identification information, the pending proceeding against the content provider will be combined with such proceeding against the internet provider.
Furthermore, concurrently with the petition for the court to compel the internet provider to disclose the sender's identification information, it is possible to petition the court to issue a prohibitory order against the internet provider to prevent it from deleting the IP address and other information of the sender prior to the court's determination of the order to disclose the sender's identification information.4
The order prohibiting the deletion of information is important because many internet providers delete their communication logs after a certain period. Such period varies among internet providers, but generally ranges from three to six months. Once these communication logs are deleted, it would become impossible to identify the sender, so it is necessary to request the internet provider to preserve them. While some internet providers will voluntarily comply with log preservation requests, others will not do so unless an order prohibiting the deletion of such logs is issued.
There are several requirements for the approval of a demand for the disclosure of a sender's identification information, but the issue most often in dispute is the requirement that the violation of the claimant's right be obvious.5 As mentioned in Part II above, the claimant must allege and prove that the social reputation thereof has been harmed by the post and that there are no factors that would negate the illegality of the post.
III. Concluding Remarks
Responding to defamatory posts is a race against time, especially when demanding the disclosure of the sender's identification information. For companies that interact with consumers, it is important for them to understand these procedures in advance so that they can take swift action when the time comes to do so.