Triggered by the tragic death of professional wrestler Hana Kimura, 22, methods to deal with anonymous online posts are being tested anew. Her death came just when the Internal Affairs and Communications Ministry launched a reexamination of the current system as dissatisfaction had mounted over the time it took to identify senders and other issues that made it difficult to help victims.
Discussions have become heated on the matter to such an extent that lawmaker-initiated legislation was studied. Depending on the content of legislation, freedom of expression, such as legitimate criticism and accusations, will be threatened.
"It requires two court decision proceedings to identify the sender," lawyer Yohei Shimizu said during a study meeting held in April at the communications ministry. Knowledgeable about measures to cope with inflammatory material online, Shimizu spoke about the heavy burden of victims who suffer from anonymous online posts.
The theme of the meeting was the way a public disclosure system should work based on the Provider Liability Limitation Law (see below). This was the first full-scale reexamination of the system in about 10 years. Behind this is the discontent smoldering among victims of defamation.
Legally speaking, if internet service and social media providers are asked by victims to disclose the information of senders, they will be allowed to decide whether to do so on their own initiative. But there are very few cases in which information is disclosed. If they comply with the request easily, they will face the risk of infringing on the freedom of anonymous expression and confidentiality of communications, thus making it inevitable for providers to take a cautious stance.
What can be revealed are limited to times when the infringement on victims' rights is obvious. If a wrong judgment is made, providers' responsibility will be sought and the fear is to be charged with criminal liability for infringement of the confidentiality of communications.
Even if claimants suffer damage due to the providers' refusal to disclose information, providers will not be held responsible unless there are intentional or serious errors on the part of providers. The so-called exemption of liability for slight negligence is adopted. This is intended to curb erroneous disclosures, but a person at a provider confessed that "because it is safer not to disclose, we tend not to reveal anything when we waver even a tiny bit."
For online defamation victims whose requests for voluntary disclosure of the senders are declined, their next recourse is to get the disclosure through court battles. But it requires at least two lawsuits before the senders can be identified.
To begin with, they must ask the social media content provider, which operates the site in which slanderous messages were posted, to disclose such information as the IP address and the times of messages posted. Based on these data, they must call for access providers, including mobile phone companies, to provide contract information on the persons who used the identified IP address. It takes slightly less than one year before a court ruling is handed down. In cases in which a foreign content provider is involved, it takes more time to serve legal complaints and other documents. Pursuing the sender's liability will come after this process.
Cases have been increasing with the rise in the number of social media users. The number of consultations filed with the communications ministry's consultation center for illegal/harmful information has topped 5,000 a year, an increase of about four times from a decade before.
Given the situation, the ministry is studying such measures as (1) expanding the range of information subject to disclosure, (2) promoting voluntary disclosure and (3) speeding up court proceedings.
As public disclosure is related to the knotty issue that a communications ministry official said involves "the confrontation of human rights against human rights," including the victim's right to honor and privacy and the sender's right to freedom of expression and communication. It is hard to choose between these two, the official added. Therefore, reexamination of the disclosure system requires a cautious stance.
For example, there is a concern that the promotion of voluntary disclosure "will induce abusive disclosure depending on how it is advanced."
Lawyer Takashi Yamaguchi, who tackles relief of the damage caused by cults, receives inquiries from former cult members seeking advice several times a year who say they "received a request for disclosure after I wrote the reality of a cult online."
A type of lawsuit known as SLAPP (strategic lawsuit against public participation), aimed at suppressing the voice of others in the name of defamation and other reasons, has begun to become conspicuous in Japan, too. Surveillance services that advertise the ability to identify senders of ill repute commenting on a company's online review site have also emerged.
Yamaguchi pointed out: "It is difficult to judge whether what is posted online is defamation or legitimate criticism because the boundary between the two is ambiguous. If a wrong judgment is made, it will place restraint on legitimate criticism and could even threaten the life and safety of senders."
Doubts have been expressed since the establishment of the Provider Liability Limitation Law in 2001 about whether it is reasonable to entrust the judgment to a provider that is not a direct party to the dispute. A plan emerged this time to establish a clause on exemption from responsibility, thereby facilitating voluntary disclosure.
"As long as providers are not a direct party to the dispute, it is very natural for them to make a less risky judgment," said the person at the provider mentioned above. "If a disclaimer is prepared for the party that is asked to disclose, the providers that don't comply with the request for disclosure now without thinking about it seriously may be willing to join the side in favor of disclosure."
Provider Liability Limitation Law: This law clarifies the range of responsibility taken by internet service and social media providers for information posted online that infringes on the rights of victims of defamation. At the same time, the law grants the right to request providers to disclose information for identification of the senders. Enforced in 2002.
Read more from The Japan News at https://japannews.yomiuri.co.jp/
