Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 1

Mass Media and Privacy in Japan:

Current Issues, Recent Trends, and Future Challenges toward the "Ubiquitous Network Society"
1)

Itsuko YAMAGUCHI*

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Inception of the Right of Privacy in Japan 156 Development toward Information Privacy 158 Balancing Test for Privacy Invasion? 159 Trends in Mass Media Cases 161 Challenges toward the "Ubiquitous Network Society" 163

Abstract
l

While we have witnessed that the concept of privacy has developed dramatically in the last century, the legal scene concerning mass media and privacy in Japanis undergoing yet more dramatic changes during the last decade. The primary focus of my presentation today is to illustrate such changes through exploring relevant Japanese court decisions and legislations, and to clarify current issues and recent trends. I also would like to discuss how Japan copes with challenges posed by 5the Internet and so-called emerging "ubiquitous computing" technology. Future technologies will provide us the personalized, convenient, and comfortable environment without even noticing the presence of embedded computers. In this Paper, I argued, with the advent of such ubiquitous network environment, peoples sense or expectation of privacy in communications might change into something different from what we have in the current media environment.

* Professor, Univ. of Tokyo (, )

privacy-right(), privacy-information(), mass-media(), ubiquitous-network-society( )

. Inception of the Right of Privacy in Japan

Let me begin with a basic question. What is privacy in Japan? In explaining the concept of privacy, Japanese academics often start with referring early American materials1) and providing a classic definition of privacy as the right "to be let alone". The current Japanese Constitution, promulgated in 1946, doesnt explicitly stipulate "privacy" in text. The courts in Japan have approved privacy not only as a private right but also as a constitutional right since the 1960s.
First judicial recognition of the right of privacy came from the district court decision in the tort case in 1964.2) It was the case in which former minister of foreign affairs sued a famous novelist, Mr. Yukio Mishima, and publishers over descriptions of the petitioners private life in a novel titled "Utage no Ato (After the Banquet)". This litigation" raised public awareness of privacy and prodded discussion on how to reconcile privacy and freedom of expression. The district court awarded the petitioner800,000 yen for damages. In its reasoning, the court

defined privacy as "legal guarantee or right that private life shall not be unreasonably disclosed", and it found the source of this aspect of privacy interests in the Constitution and statutes. The court said such legal guarantee is "indispensable to preserve individual dignity and to guarantee the pursuit of

1) See, e.g., Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890); William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960). See also MASAMI ITO, PRIVACY NO KENRI [THE RIGHT OF PRIVACY] (1963). 2) Tokyo District Court (Sept. 28, 1964) 385 HANREI JIHO 12.

Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 3

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communications"3) It held that an injunction and damages for mental pain shall be granted against the invasion of privacy as a tort under Article 709 of Civil Code.4) The district court then set out the following threestep test to clarify privacy invasion eligible for legal remedy. That is, the content disclosed is (a) the matter which is likely tobe accepted as the fact of private life or the probable fact of private life; (b) the matter of which anybody in the petitioners position, judging with a sensitiveness of people in general, wouldnt want the disclosure or, in other words, would suffer psychological burden or anxiety by the disclosure; and (c) the matter which has not yet been known to the general public, and the petitionerdid actually feel offended or anxiety by the disclosure. privacy law. The definition and test above serve as an important first step for later development of

Japanese Supreme Court decision in 1969 recognized privacy to be protected under the Constitution for the first time, though the Court didnt use the exact word of "privacy".5) The appellant, who joined student demonstration in the street and was charged with obstructing a police officer, claimed unconstitutionality of the police conduct to have taken the appellants photograph without consent or a court warrant." "The Court held that, under Article 13 of the Constitution, anyone shall have freedom not to be photographed appearance unreasonably without consent. It also held that it
3) This phrase implies that the right of privacy is grounded in Article 13 of the current Japanese Constitution, Nihonkoku Kenpo. Article 13 stipulates as follows. "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." The English translation is available at, http://www.kantei.go.jp/foreign/government_e.html (last visited June 14, 2006).. 4) Civil Code, Minpo, was enacted in 1896. Article 709 is a general provision of tort law and it says that the "person who willfully or negligently infringed other persons right or legally protected interest shall be liable for damages caused by such" infringement. 5) Supreme Court (Dec. 24, 1969) 23 MINSHU 1625.

would be unconstitutional under Article 13 and inadmissible for the police to take a photograph of an individual without a legitimate reason.6) Another Supreme Court decision in 1981 is generally understood to recognize again privacy as a constitutional right, though its majority opinion never used the word "privacy".7) In this case the Court affirmed to find negligence in the local government offices disclosure of the prior crime record of the appellee to an attorney. The Court held that the disclosure was "illegal use of the public power".

. Development toward Information Privacy

The 1960s was roughly the time when Japan started to foresee the advent of the "Information Society". Since then, the legal as well as social implications of computer and information technology have been discussed. Privacy concern triggered by computerized data bank was among discussed topics. Under such so-called "infomatization" of society, it is generally explained that the concept of privacy has developed to connote a broader meaning of the right "to control personal information" .8) The boundary between this new type of data privacy or information privacy and traditional types of privacy to be protected against intrusion upon seclusion or publicity given to private life is blurred. It would need to undertake an elaborated and delicate work to clarify their relationship, but its probably adequate to say that their targeted interests are partly overlapped: at least some of data privacy protection leads to privacy protection in the traditional sense. About data privacy legislation, the progress was rather slow in Japan. Local municipalities went ahead to enact ordinances to protect personal information in dealing with computer processed data in the 1970s. Following the OECD guidelines in 1980, the national government enacted "Law on Protection of Computer Processed Personal

6) Nevertheless, the Supreme Court concluded that the police conduct in this case was legitimate. 7) Supreme Court (Apr. 14, 1981) 35 MINSHU 620. 8) See e.g., ALAN WESTIN, PRIVACY AND FREEDOM (1967); see also Koji Sato, Privacy no Kenri (sono Kohoteki Sokumen) no Kenporonteki Kosatsu (1)-(2) [Constitutional Study on the Right of Privacy (in Aspect of Public Law) (1)-(2)], 86 HOGAKU RONSO 1; 87 HOGAKU RONSO 1 (1970).

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Information possessed by Administrative Organizations (Law No. 95 of 1988)". The law applied only to the public sector. Especially after the mid-1990s when the Internet use was getting spread in society and the EU data protection directive was adopted, more comprehensive data privacy legislation to cover the private sector became high on the political agenda. As a result of extensive debates, the "Protection of Personal Information Law (Law No. 57 of 2003)"9) was enacted. The law broadly protects personal information which can identify a specific living individual, not limited to "sensitive"information. This law functions as a basic law of related data protection laws, and it came into effect fully from April of 2005. The broadening of privacy concept to encompass data privacy could be clearly seen also in Japanese Supreme Court decision in 2003.10) In this case a university submitted a name list of students, who signed to attend a symposium lecture sponsored by the university, to the police for security reason. That list contained information of university student number, name, address and phone number. Students brought action against the university for damages, etc., claiming that the disclosure to the police without their consent would constitute the tort of privacy invasion. The Court admitted that personal information on the name list was "simple information in order to identity individuals" and in that sense there was not significant need to be concealed. However, the Court said, it was natural for students to think that they wouldnt want such information to be unreasonably disclosed to others, and their expectation should be protected. The Court held that such personal information shall be "legally protected as information concerning the appellants privacy".

. Balancing Test for Privacy Invasion?

Today it is obvious that the right of privacy has been recognized and its scope is getting broadened to include data protection in Japan. Still, in the context of litigations involving existing mass media, traditional types of privacy issues remain important.
9) It was enacted with four other related data protection laws. Its unofficial English translation is available at, http://www.cas.go.jp/jp/seisaku/hourei/data2.html (last visited June 14, 2006). 10) Supreme Court (Sept. 12, 2003) 57 MINSHU 973.

Therefore, next question to be asked here is what constitutes the tort of privacy invasion, or in other words, when immunity is given for privacy invasion.
It is fair to say that such criteria have not been fully developed yet, as there is not enough accumulation of precedents. The number of privacy litigations in Japan, including those against mass media, had been relatively small. Generally speaking, first of all, it might be because litigation is not a familiar course of actions to resolve civil disputes in Japan. Still, litigations of privacy invasion are much less than those of defamation. That might be partly because existing defamation law could work to deal with a certain aspect of privacy concerns. Unlike privacy, defamation is explicitly stipulated in statutes such as Civil Code and Penal Code.11) Under such statutory provisions and judicially established rules on civil and criminal immunity, the truth defense to defamation claim is allowed only when the publication is about "the fact of public concerns" and the purpose of the publication is "solely for the public interest". Therefore, for example, its possible for the complainant whose unknown fact of private life has been disclosed would go for defamation claim. Indeed, privacy claim in tort cases often came together with other claims like defamation. However, there are remarkable changes in mass media cases over the last decade. One of such changes is the increase in the number of cases, including those of defamation and privac y.12) Based on such recent decisions, it could be summarized that the courts often employ the method of balancing interests in reasoning, in order to decide whether or not the publication
11) See e.g., Article 710 and 723 of Minpo[Civil Code]; Article 230 and 230-2 of Keiho[Penal Code]. 12) However, its hard to know the exact statistics because not all of court decisions will be published on widely accessible reporters in Japan. For general trends in recent mass media cases, see infra note 16 and accompanying text.

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constitutes the tort of privacy invasion.

For instance, the

Supreme Courts 2003 decision explicated this point.13) It was the case concerning a weekly magazine article on juvenile delinquency. The Court emphasized that, even if the article included defamatory and privacy invasive contents, the immunity must be considered individually and concretely for each defamation and privacy invasion. About privacy invasion, the Court explained as follows. The publication constitutes the tort, when "legal interest not to be published such fact" and "the reason to publish it" are balanced, and then if such interest overrides such reason .14) Nevertheless, it might be too early to say that balancing is the established test for all types of privacy invasion cases. It is because the majority opinion of the Supreme Courts 2003 decision concerning the university name list mentioned above employed a "reasonable expectation" test15) rather than a balancing test. Such difference in tests might reflect yet to be clarified differences in traditional types of privacy invasion by mass media and new type of privacy invasion in handling personal data.

. Trends in Mass Media Cases

13) Supreme Court (Mar. 14, 2003) 57 MINSHU 229. 14) Then the Court listed multiple factors to be considered in such balancing in this case as follows: the appellees age and social position at the time of the publication, the kind of crime committed, the scope of distribution of the appellees privacy information and the degree of injurythe appellee suffered by the publication, purpose and meaning of the article, social situation at the time of the publication, the necessity to publish such information in the article, etc. 15) The Supreme Court decision of the name list case above found that, based on the facts of this case, it wasnt difficult for the university to ask for students prior consent. The Court thus concluded that the disclosure "intruded upon reasonable expectation about proper management of information concerning privacy" and constituted the tort of privacy invasion. On remand, the Tokyo high court granted 5,000 yen to each student for damages (Mar. 23, 2004) 1855 HANREI JIHO 104.

Besides the increase in the number of litigations, there are some general trends of mass media cases during the last decade.16) First is about the amount of damages to be awarded especially in defamation cases. The amount had been long criticized as too low since the 1980s. In the last several years, there were active movements and proposals to raise the amount.17) Those resulted in boosting the average amount of damages granted in overall litigations involving mass media including privacy cases. Second, issues disputed have become diversified and complicated, and thus the reasoning of the court opinions tends to be more detailed and elaborated than before. That probably contributes to the clarification of related legal doctrines and criteria. The recent development of tests for privacy invasion above might be a product of such trends.

Third, one more trend worth mentioning is increased availability of injunctive relief. Article 21 of Japanese Constitution explicitly prohibits "censorship", and there is an established rule against prior restraint.18) In the context of defamation, the Supreme
16) See e.g., Media Hanrei 100sen [100 Selected Cases on Media], Special Issue of JURISTO, No. 179 (Masao Horibe & Yasuo Hasebe eds., 2005); HYOGEN NO JIYU TO PRIVACY[FREEDOM OF EXPESSION AND PRIVACY](Yasuhiko Tajima et al. eds., 2006); Shigenori Matsui, Henbo suru Meiyokisonho to Hyogen no Jiyu [Transforming Defamation Law and Freedom ofExpression], 1222 JURISTO 77 (2002). See also brief annual reviews ofmass media cases from 2002 to 2005 by Itsuko Yamaguchi, 622 SHINBUN KENKYU 46 (2003); 633 SHINBUN KENKYU 67 (2004); 645 SHINBUN KENKYU 44 (2005); 655 SHINBUN KENKYU 55 (2006). 17) See e.g., Tokyo Chiho Saibansho Songaibaishososho Kenkyukai [Tokyo District Courts Study Group on Litigations for Damages], Mass Media ni yoru Meiyokisonsosho no Kenkyu to Teigen [Study and Proposal on Litigations in Defamation by Mass Media] , 1209 JURISTO 63 (2001); Tokushu: Songaibaishoseikyusosho ni okeru Songaigaku no Santei [Symposium: Calculation of the Amount of Damages in Litigations for Damages], 1970 HANREI TAIMUZU 4 (2001). 18) Article 21 of the Constitution stipulates as follows. "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated."

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Court confirmed in 1986 that judicial injunction against the publication of expressive materials, on the ground of infringement of a certain kind of personal rights, could be admitted only exceptionally under a strict rule.19) During the last decade, there came several lower court decisions to place an injunction on the publication of book on the grounds of infringements, including privacy invasion.20) The discussions spurred when the Supreme Court affirmed in 2002 to enjoin a novel entitled "Ishi ni oyogu Sakana (A Fish naiant in Stone)"from being published in the form of book for the reasons of defamation, privacy invasion, etc.21) Yet more controversial litigation occurred in 2004, in which the district court issued a preliminary injunction against the publication of an article in a popular weekly magazine with a large nationwide circulation.22) The article reported about the divorce of a daughter of a prominent family, whose mother is former minister of foreign affairs and grandfather was influential former prime minister. The Tokyo high court vacated the injunction order in later objection procedures. The high court affirmed to apply a three-prong injunction criterion for privacy invasion set out by the district court. Nevertheless, the high court found that privacy invasion in this case had not met the last prong of that criterion: the petitioner "is likely to suffer significant and eminent irreparable damage" by the publication.23)

. Challenges toward the "Ubiquitous Network Society"

In many countries including Japan, it is probably no exaggeration to say that the
19) Supreme Court (June 11, 1986) 40 MINSHU 872. 20) Among them, for example, there was a series of decisions to enjoin the publication of so-called celebrity fans "chasing book"containing detailed residence information of celebrities. See e.g., decisions of Kobe District Court, Amagasaki Branch (Feb. 12, 1997) 1604 HANREI JIHO 127; and Tokyo District Court (Nov. 30, 1998) 1686 HANREI JIHO 68. 21) Supreme Court (Sept. 24, 2002) 1802 HANREI JIHO 60. 22) See decisions of Tokyo District Court (Mar. 19, 2004) and Tokyo High Court (Mar. 31, 2004) 1865 HANREI JIHO 12. See also its case review by Itsuko Yamaguchi, 1906 HANREI JIHO 222 [562 HANREI HYORON 44] (2005). 23) Other two prongs are as follows. First, the article is not about "the matter of public concerns". Second, it is apparent that the purpose of the article is not "solely for the public interest".

growing presence of the Internet is one of the biggest changes happened in the media environment over the last decade. Cyberspace communications have unique characteristics such as the inherent tendency to go beyond international borders, the high degree of anonymity, and the uncertain liability of service providers. Those sometimes made it difficult to pursue a legal action against any kind of wrongdoing in cyberspace. Especially in Japan, there was a need to reconsider the traditional concept of privacy in communications in order to deal with online legal issues. Article 21 of the Constitution guarantees "the secrecy of any means of communication".24) The scope of the secrecy requirement under Article 21 and relative statutory provisions has generally been understood to include not only the content but also information of the sender and the recipient of communication. Under the traditional understanding of privacy in communications, Japan faced difficult questions posed by digital network communications. Lets briefly look at how Japan responded to such challenges in the last decade.25) Looking back the mid-1990, the Internet brought the benefits of diversity of information, ideas, values and ways of life to the Japanese public, but it also enabled distribution of illegal and harmful materials on an unprecedented scale. In dealing with illegal online contents such as obscene and defamatory materials, Japanese government at that time took a cautious approach. Japan preferred to avoid immediate legislations in order not to risk stifling the development of digital communications. Rulemaking for cyberspace in Japan gradually took place in its courts through the application of existing laws to resolve individual cases. Japans first online defamation suit was filed in 1994. The district court held the sender of defamatory messages, the system operator of bulletin board, and the computer network service provider liable in 1997.26) In 2001, the high court affirmed in part and reversed in part, holding only the sender liable for 500,000 yen in damages.27) This litigation showed that under existing laws there remained unsettled uncertainties in how to resolve issues raised by unique
24) See supra note 18. 25) For details of my argument here, see e.g., Itsuko Yamaguchi, Beyond de facto Freedom: Digital Transformation of Free Speech Theory in Japan, 38 STAN. J. INTL LAW 109 (2002). 26) Tokyo District Court (May 26, 1997) 1610 HANREI JIHO 22. 27) Tokyo High Court (Sept. 5, 2001) 1786 HANREI JIHO 80.

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characteristics of cyberspace communications. Japanese government has started actively to take a series of legislative measures since the late 1990s. One of such legislations is so-called provider liability law: "Law on the Limitation of Specified Telecommunications Service Provider's Liability for Damages and the Disclosure of Information about the Senders of Communications (Law No. 137 of 2001)", enacted to clarify the obligations of service providers. The law also gives an alleged victim, whose right has been infringed by a certain type of network communications, the right to demand service providers to disclose identification information about its sender. The law is made to be comprehensive enough to cover infringement of any right, including defamation, privacy invasion, copyright infringement, etc. Under the law, the district court in 2003 ordered the operator of bulletin board on the Internet to disclose information of the sender who posted defamatory messages.28) In another case, further issue was presented about thescope of this laws application. Could an alleged victim in the case of peer-to-peer file sharing over the Internet invoke disclosure claim under this law against a mere conduit access service provider who passed through an infringing material? The high courts 2004 decision on this issue, in which personal customer data were leaked by Win-MX file-sharing onto the Internet, affirmed to order the passing-through provider to disclose information concerning the sender.29) Such wide reaching application of the law may have a significant effect on the level of anonymity which has characterized privacy in cyberspace communications of the last decade. Interestingly, peoples sense of cyber-"space" in the early days of Internet growth seems to be changing gradually with latest developments in information technologies.30) Today, for instance, the broadband connections by wireless and optical fiber become more affordable, communications terminals get miniaturized, and business demand for
28) Tokyo District Court (Mar. 31, 2003) 1817 HANREI JIHO 84. 29) Tokyo High Court (May 26, 2004) 1152 HANEI TAIMUZU 131. 30) See e.g., Itsuko Yamaguchi (Translated by David C. Buist), Cyberlaw, 23 THEORY, CULTURE & SOCIETY 529 (2006); Itsuko Yamaguchi, Ubiquitous Jidai ni okeru "Cyberho" Gainen no Tenkai [Development of Cyberlaw Concept in the Ubiquitous Age], in KOERU HO, TOKERU SAKAI 4 MEDIA TO SEIDO [BORDERS GET FUZED, AND LAWS GO BEYOND, vol. 4: MEDIA AND SYSTEM] (Daniel Foote & Yasuo Hasebe eds., 2005).

RFID and so-called "ubiquitous computing"is sharply rising.31) Under such environmental changes, it comes to feel like computers enter invisibly and pervasively into peoples lives, rather than people using computers go into cyberspace. Future technologies might be able to provide us the personalized, convenient, and comfortable environment without even noticing the presence of embedded computers. With the advent of such ubiquitous network environment, peoples sense or expectation of privacy in communications might change into something different from what we have in the current media environment. These speculations of future surely require careful evaluation. Indeed, it would be a part of the mission of the academic and research community to envision the coming "Ubiquitous Network Society" and to discuss its social and legal implications in this first decade of the 21st century.

Reference
Koji Sato, Privacy no Kenri (sono Kohoteki Sokumen) no Kenporonteki Kosatsu (1)-(2) [Constitutional Study on the Right of Privacy (in Aspect of Public Law) (1)-(2)], 1970. Media Hanrei 100sen [100 Selected Cases on Media], Special Issue of JURISTO, (Masao Horibe & Yasuo Hasebe eds., 2005. Itsuko Yamaguchi, Beyond de facto Freedom: Digital Transformation of Free Speech Theory in Japan, 38 STAN. J. INTL LAW, 2002. , (Translated by David C. Buist), Cyberlaw, 23 THEORY, CULTURE & SOCIETY, 2006. , Ubiquitous Jidai ni okeru "Cyberho" Gainen no Tenkai

31) Concerning RFID (Radio Frequency Identification) tags, Japanese ministries published "Denshitagu ni kansuru Privacy Hogo no Guideline [Privacy Protection Guideline for ElectronicTags]"on June 8, 2004, available at http://www.soumu.go.jp/s-news/2004/040608_4.html (last visited June 14, 2006). See also "u-Japan Policy: Working Toward Realizing the Ubiquitous Network Society by 2010" by the Ministry of Internal Affairs and Communications, available at http://www.soumu.go.jp/menu_02/ict/u-japan_en/index2.html (last visited June 14, 2006).

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[Development of Cyberlaw Concept in the Ubiquitous Age], in KOERU HO, TOKERU SAKAI 4 MEDIA TO SEIDO [BORDERS GET FUZED, AND LAWS GO BEYOND, vol. 4: MEDIA AND SYSTEM], Daniel Foote & Yasuo Hasebe eds., 2005. Japanese ministries, "Denshitagu ni kansuru Privacy Hogo no Guideline [Privacy Protection Guideline for ElectronicTags]"on June 8, 2004.

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