References

Due to the informal nature of this project, I did not provide the original texts I referred to while writing the blogs, as I intended to post them till the end of the blog.

 

Matsuka, Mika. “匿名掲示板に名誉を毀損する書き込みがあり,それを掲示板管理人が削除しなかったことに違法性が認められ,慰謝料・損害賠償請求が認められた事件(2ちゃんねる対動物病院事件) : 東京地判平成14626日判決広島大学マネジメント研究 (2005)

Ishii, Shigeki. “2ちゃんねる」事件(東京高判平成17.3.3) (特集 平成17年著作権重要判決紹介)” パテント (2006)

Ikeba, Hidetoshi. “プロバイダー等の責任と情報発信者との関係 (特集 システムリスクと内部統制)” 法とコンピュータ (2007)

Takase, Ami. “第三者によりBBS上になされた書き込みについてBBS管理者の著作権侵害責任が認められた事例–2ちゃんねる小学館事件[東京高判平成17.3.3] (知的財産権の間接侵害(その4))” 知的財産法政策学研究 (2007)

Conclusion

In the process of writing these blog posts, there are a few criterions which I have noticed which I believe should be considered when making legislation related to regulation of speech on the internet.

My opinion is that the law should provide basic guideline and some concrete rules, but should allow each case to be individually considered. As we have seen in how the American section 230 has been applied, a single concrete rule to all situations just doesn’t apply. Thus, I believe the law should be left unclear and made with some margin for consideration. Because the Internet grows rapidly, like we have seen in how SNS services have become popular in just a few years, we need to understand that in the realm, it is difficult to predict what happened even in the next year. Rapid change in technology could easily provide new methods for people to show their opinion or thoughts on the internet. Thus, instead of changing the law every few years to accommodate new technology and forms of communication on the internet, it is realistic to keep the law vague and force judges to make decisions on a case to case basis. Once some cases are dealt with, the court would then be able to make decision based on the precedent examples.

However, I do not intend to say that the law should be left completely vague. I do believe that there should be a law made especially for speech on the Internet, and that it should provide some insight as to how such cases should be ruled. For example, general guidelines should be provided for judges to consider, such as the size and number of users on the website, the content of the website, how the website is administered etc. Other factors, such as whether the owner of the website tried to prevent such criminal acts by taking preventive measures should also be a factor. The law might make it mandatory for large websites and web services that collect user generated content to provide a “delete policy” and post it on the website, for example.

One point that the law definitely has to make clear is the relationship between the user and the owner of the website. That is, does the owner have total control over what is posted on the website (and thus, responsibility to delete posts that seem to have problems), or should the owners be free from such responsibilities (and immune from being sued). The owner cannot always be held responsible for all posts on a website, and thus, the general direction should be towards decreasing the responsibility of internet service providers (in contrasts to owners of traditional methods of communication, such as the press and newspapers). However, it would be too strong to say that service providers are immune from all responsibilities, as it would make them loose any incentive to keep the website free from infringing material or defamatory content. As a basic rule, I think we should assume that the owners of a web service own and administer that service because they think the service will benefit the users and not be harmful for society. To this extent, it is natural to assume that the owners of web services will take action to minimize the negative effects that their service may have on the internet community.

One idea would be to make it mandatory for web services to show who is in charge of maintaining quality of the content of the service. If the scale is too large for one individual, as it is in 2ch, the owner should do the best he can to find few other members (volunteers) who can take responsibility over some section of the web. Although this mandatory display of responsibility probably would not be followed by all websites on the internet, larger websites will always have a large number of access and thus have the social pressure to correctly compile and display one. In the case that trouble occurs on a website, the court could make the owners and people responsible immue only if they have the list compiled, and have followed reasonable steps to prevent the problems. This system would provide larger websites (and thus websites which have large possibility for problems to occur) to take more preventive measures to block content that is infringing the rights of others.

In terms of actually implementing the law, there maybe cultural factors that should be considered when implement these laws in individual countries. The cultural factors I am talking about are not as much about the difference in nationality or geographical location as it is about the culture of the internet community that uses the website. The difference between the Japanese 2ch and the English AutoAdmit is not the difference of nationality, but about how the user community is committed to using that website. Websites that have a strong base of users who are committed to using that service (in other words, websites with “geeky” users) would have to curtail delete policy and rules that meet the needs of their community and culture. Hence, it is crucial that the court take these aspects in to consideration when making final judgments (for example, the culture of 2ch makes it harder for its owner to prevent infringing posts from being made than AutoAdmit).

In conclusion, I hope that future laws will be made to protect free speech, and the right of others, by not being too specific about the details in the law. By looking at past cases related to 2ch, and the Japanese laws on speech on the web, I believe I have obtained some insight as to how such problems are dealt in Japan, and how such problems could be solved.

During the process of making this blog, I strongly felt that current information of such issues in Japan is not sufficiently covered in English reading material. To this extent, it is my hope that more research will be done with focus on comparison between several countries, as the internet itself is greatly a borderless issue.

How 2ch should change its delete policy

Many cases have proven that the delete policy of 2ch is not adequate to its current situation, and does not fit the law. Examining past cases, I believe there are some factors that need to be taken into consideration when making a removal policy, which 2ch should have thought about.

First, 2ch should consider the new law that has taken effect. The law clearly shows that owners of internet forums have to be more responsible for what happens on each website. Although the current 2ch owner has shown some effort, he must work harder to show the users that posts on the internet have sustainable influence, both within the 2ch community, and in the real world. Furthermore, there needs to be rules which reflect this philosophy.

Second, 2ch may need to find a better way to cope with the fact that the people who are actually running the website are volunteers. Although the current owner had made it clear that he will take responsibility for all activity taken by the volunteers, in effect, there is no way a single person can take responsibility of what happens on all of the board. A major characteristic of 2ch is that it is run completely by an individual, instead of a for-profit group, as seen in some English internet forums (such as “College Confidential” and “AutoAdmit”). Currently, because the forum is run by a group of volunteers, there are no concrete standards as to how a janitor should deal with a case, and the judgment made by each individual may greatly vary. Furthermore, there are different rules in different boards, which may be necessary for fostering healthy discussion online (posts on “philosophical discussion” shouldn’t be judged by that same standard as the posts on the “celebrity” board), but also has dangerous implications.

Third, 2ch needs to make the delete policy clear and present it as a strict policy. Currently, the policy is hard to understand for people who are unfamiliar to 2ch, and these people tend to be the people who are targeted in defamatory posts. Furthermore, the current delete policy shows aspects that are dependant on moral values; the owners states that “in the end, everything is up to how the users can act.”

Case in which 2ch was sued after the establishment of the Japanese section 230 (2)

However, it is this very statement that the court made which seems as if the judgment contradicts with the new law that was implemented. The new law makes it clear that unless there is enough evidence that makes it apparent that contents posted were infringing or defamatory, the service providers are not at all responsible for the posts on the website. However, in this case, merely receiving the e-mail from the publishers does not provide enough evidence for the owner of 2ch to believe that the content is actually infringing the rights of the publishers, and thus, 2ch is not responsible for the posts. By ruling that 2ch should have deleted the posts immediately, the court is making a judgment which seems to contradict the new law in practice.

Furthermore, because the 2ch is held responsible for the posts the moment it receives the e-mail requesting the removal of infringing material from the publishers, the court is assuming that sufficient evidence (to believe that the posts are infringing) is not required for the removal of the posts. This ruling is dangerous, because it forces service providers to delete posts even if there is not sufficient evidence to believe that the posts are infringing, and can jeopardize the freedom of speech on the Internet.

Because it is very difficult for a small number of people to read and confirm all posts on an internet forum, I think the judgment of the court was overly biased towards the publishers. In addition to the fact that there are still few cases in which such problems have been rules, it may be the case because 2ch is in the core of the Otaku culture of young and “geeky” teenagers and is not perceived positively by the exclusive culture of judiciary and government in general.

Case in which 2ch was sued after the establishment of the Japanese section 230

A famous case in which a user requested a post be deleted, but went to court was in the “Tsumini-nureta-futari (the title of a manga)” case. In this case, the publishers of a magazine found that an interview that was published in their magazine had been posted on the internet by somebody. A user had typed in the entire interview by hand, and posted it. After finding out about the array of posts, the publishers requested 2ch to remove the posts; however 2ch refused to do so, reasoning that the publishers did not follow the method specified on the delete policy and sending them a e-mail message that merely said to “send such requests to the removal request board.”  After acknowledging that 2ch would not delete the posts, the publishers sued 2ch stating that 2ch was helping copyright infringement.

The court judged that even though the publishers did not follow the rules posted on 2ch, the owner was able to acknowledge that copyright infringement was taking place, and immediately delete the relevant posts. The court ruled that the damages were about 1200,000 yen in total.

One of the characteristics of this case is that, the court ruled that the responsibility for removing the infringing posts were generated on the instant that 2ch received the request from the publishers. Although this is one of the first cases that were judge after the implementation of the new law, there have been pasts cases ruling that responsibility arises a few days after the original request is sent in, taking into consideration that the owners of such internet forums cannot easily judge if the posts really are infringing without doing further investigation. It is said that the court ruled this way because the content that was posted on the internet was a portion from a weekly magazine which was targeted at a relatively small number of anime “manias,” and thus, the infringing posts had a crucial damage on the number of sales of the book. Furthermore, unlike defamatory posts, in the case of copyright infringement, it is easy to confirm if a post is copying the original post of another person, and thus, the court ruled this way.

The Japanese version of section 230: “Law concerning Limitation of Damages to Specific Telecommunications Service Provider and disclosure of Sender Information”

 

Although the Japanese law has some similarity to Section 230 of the Communications Decency Act, in general, it seems that the Japanese version expects more from the “specific telecommunications service provider,” a term that refers to  both the internet service providers (ISPs) and the provider of services (such as internet forums). That is, the service providers are only immune from liability if they meet certain requirements, and if not, they are expected to be responsible for what happens through their services.

Furthermore, it is apparent that the law was deliberately made so that the language would be vague, and not bring about immediate changes to the role of such service providers. Because the wording of the law is so vague (“if there is an appropriate reason, which is enough to determine that it should have been able to know that such other person’s rights are infringed”), it is usually not clear whether or not the service provider is really immune until the case goes to court. In effect, the law only seems to promote the awareness of such issues among service providers, and provide the court with some general guidelines when making judgments about such internet related issues.

The law being vague is not always a negative factor, though. Because of section 230, AutoAdmit was never held guilty for distributing such information that apparently infringed the right of others. The Japanese law makes it clear that, in general, internet service providers are immune from responsibility, unless the service provider was aware that some sort of infringement was taking place. This leaves space for judgment in extreme cases. It make it necessary for service providers to have some limited amount of responsibility for what happens on their site, and gives the incentive for them to implement methods to stop malicious activity online.

              An English translation of the law can be obtained at http://www.isc.meiji.ac.jp/~sumwel_h/doc/codeJ/provider-e.htm.

 

Cases before laws regarding responsibility on the Internet were passed (2)

              The latter (crime of aiding and abetting) crime is usually defined for people in a group who did not directly get involved in the actually crime, but helped the criminals by helping the criminals, providing weapons or goods to the criminal, keeping a look out for the criminals etc. In the case that this crime takes place, the Civil Law makes it clear that he or she will be punished by the same sentence as the criminals who are directly involved in the crime (Civil Code Article 719 Section 2). Whether the crime is used in this case or not is judge by how much the act helped the crime take place.

              The problem of trying to apply this case, since the direct criminal (the person who posted the defamatory post) is not involved, the logic of punishing 2ch with the same penalty as the original poster cannot apply. Thus, in the end, the court never made clear to what extent 2ch was held responsible, because crimes defines in the Civil Code could not easily be applied to this case. This case is clear proof that, at least before the law was made, Japanese law was not sufficient to make judgment regarding speech on the Internet. It is difficult to judge whether the punishment given to 2ch was correct or not, because 2ch may not have been able to identify all of the defamatory posts without more information from the vets, but at the same time, the vets were feeling that they were taking sufficient action for the posts to get deleted. All we can say is that, at least because there were not laws that could directly be applied to this case, the court had to make its judgment by considering several factors of the incident, and thus, took sufficient effort before making the call. If a law that makes statements that is too strong in regard to how such cases should be punished, it may jeopardize free speech on the Internet, or, allow defamatory posts to exist on the internet. We can say that, because there were no clear laws, the court was forced to take time in making the judgment.­­­

Cases before laws regarding responsibility on the Internet were passed (1)

There are only a few cases in which 2ch was held responsible for a post on the website, before the law regarding the responsibility of service providers took place in 2002. One case took place between 2ch and a veterinary hospital. The judgment to this case was given on June 26, 2002 at the Tokyo District Court.

In this case, the owners of a vet found that their hospital was accused of being a “fraud” in the “thread for revealing immoral animal vets” on the “I love pets” board. The owners of the vet told 2ch to delete the posts that were defamatory, but because their method of requesting for the delete was not in line with the 2ch delete policy, the owner of 2ch could not find all of the relevant posts, and only deleted part of the defamatory posts. The owners thus proceeded to sue 2ch in request of having more than 50 blog posts deleted, and paying them compensation for damages.

              The court stated that, it is the website owner’s responsibility to judge whether a post is defamatory of not. In this case, the posts were clearly defamatory, and thus, the court stated that 2ch should have deleted the posts after being notified. Thus, 2ch was held guilty for defamation, and was ordered to pay 4,000,000 yen in compensation to the vet.

Because the decision was given out before the Provider Responsibility Restriction Act took place, the judgments was given on the basis of two criterions: whether 2ch was responsible for a crime of omission, and whether 2ch was responsible for a crime of aiding and abetting due to omission. Both of these crimes are defined on the Civil Law Act, and have existed for a long time. The effort of Japanese courts was shifted towards using conventional methods to judge a case that seems irrelevant to these old laws.

For the former, the court assumed that the internet forum is an “object,” in order to rule that the owner of 2ch did have the responsibility to delete defamatory posts from his website. The law states that a crime of omission could take place if the person is a owner of a location or an object. In this case, it is apparent that the law was stretched to fit the needs of the judges.

Furthermore, in order for the crime to apply, the act of omission had to have the same value as the actually doing the crime. Thus, in this case, the act of writing a defamatory post had to have the same value as the act of refusing to delete the post. It seems that intentionally writing a post on the website would be considered a much more heavy crime than just refusing to delete the post. In addition, in the past, one judge explicitly mentioned that “it is apparent that the owner of the website is not the main character in the crime” and did not punish the owner of the internet forum. However, the court ended up judging that the act of omission was of same significance as the crime of actually doing the crime. We can see that in this case, the court expanded the interpretation of the law, and made statements that directly conflict past cases.

The Delete Policy

The geeky culture of 2ch is also existent in how the website is administrated. Because the owner of the website is a single thirty year old man, it is far beyond his reach to make sure that the entire website is running properly. Instead, in 2ch, some people voluntarily play special roles within the community. There are people who solve technical problems, people who are responsible for the servers, and people who are responsible for deleting unlawful posts (“janitors”), just to name a few. There is even an administrative board which is built by members who have extreme responsibility for the website.

In the deletion policy, these “janitors” play an important role. These people receive the requests from users who feel their rights have been infringed, and decide whether a certain post should be deleted or not. The website had made it clear that janitors, who are just volunteers, are not responsible for their actions, and that the owner of 2ch is liable for all of their actions. In exchange, newer janitors usually do not enjoy all of the administrative powers that more experienced janitors can utilize, and 2ch reserves the right to dismiss any janitor at any time.

Because of these rules which are often not clear to people outside the 2ch community, beginners or people who are foreign to this culture often have trouble finding out the correct way to delete specific posts. If one wants a certain post to be deleted, he or she must follow the rules as specified on the delete board. When these rules are not followed, the delete requests are more than often disregarded by the 2ch community. It goes without saying that this gap between the 2ch community and the general public has been the reason for many problems (as we will see in later posts).

There is a difficult line to how the deletion policy should work. A 2ch user would assert that these rules are necessary in order to correctly identify the posts that infringe the right of others, and if the posts really do infringe any rights. He may go on to say that this sort of delete policy is required to protect the right of speech. Under the current Japanese law, because it already gives out some general idea of how a service provider should function (including specific details, such as “seven days”), each individual website looses its freedom to make a delete policy which meets its needs. The law was able to promote the awareness of delete policies (which is ideal because it would make website owners take more responsibility for the services it provides); however, because it specified some details, in effect it constraints the web owners as to how they should administer their website as well.

The 2ch delete policy has the potential to conflict with the law as well. Some one who feels his right has been infringed could notify 2ch using a wrong method. In this case, 2ch would not recognize those posts because the correct method to report unlawful posts has not been followed; but the person who requested the removal of a post would feel he did enough to notify the web administer. In essence, it would be a conflict between the inherent geeky culture of 2ch, and the law.

Because it is hard to imagine law makers and the owner of 2ch having a discussion over how to make new laws, the only way webmasters of websites like 2ch can keep infringing posts off from their websites is by making a delete policy that is clear and consistent with the law, and educating users about the policy. 

The 2ch community and its influence

“2ch” has several characteristics which separate it from other internet forums. The first major difference is the broadness of the topics that it covers. It has countless “categories” which covers a broad topic, and each category is consisted of numerous “boards.” On each board a user can make a “thread,” in which the actual discussion about a particular topic takes place. For example, a discussion about the recent decrease in Harvard’s endowment has its own “thread” on the “International News” board, which is categorized in the “World Affairs” category.

One characteristic that keeps 2ch constantly active is that each thread only allows up to 1000 posts. Because newer threads appear higher on the “board,” this limitation of the number of posts makes it possible to maintain new topics at the top of the board. Furthermore, it also helps 2ch restrict the amount of data stored on the severs, because older “thread” are put in a database that the public cannot access for free.

The second major characteristic of 2ch is its culture. “2ch” hosts a unique culture, which is different from that of the general Japanese population and other major internet forums in the US and in Japan. Such culture can be seen in the terminology used in 2ch, the special rules that as expected from a 2ch poster, and in how it has influenced popular culture in general.

There are many terms that coined in 2ch, and can only be seen in it. Some are terms are relevant to posting on a internet forum, such as “age” (pronounced uh-gay), which is used when one wants a particular thread to appear on top of the board. Others, seem bizarre, even in the eyes of non-2ch using Japanese users. For example, people who regularly post on 2ch are called “residents” of 2ch. Instead of writing suman (literally “sorry” in Japanese), a user may write sumaso, because the Japanese character for n () and so () look very similar. ROM may be used as short for “read-only member,” instead of the common used technological term, “read-only memory.” The video sharing site is referred to as Yoh-two-bay, because Romanizing the Japanese gives the same spelling as “Youtube.”

The culture of 2ch is so different from that of the general Internet that the users of 2ch are often considered to be “geeky computer freaks,” or a “otaku”. Such geeky students may spend long hours of their time on the internet, posting articles on 2ch. A typical otaku may have a lifestyle that is opposite to most people in society, actively making posts in the earlier hours of the day. The typical stereotype is that they often carry a large backpack and walk around in a seemingly “dorky” or “lame” outfit. Akihabara, a district in Japan formerly famous for the numerous of electronic stores, and more recently famous for its anime and otaku culture, is regarded as a “Mecca” to them.

              A widely know example of 2ch culture infiltrating that of the general public was when the movie “Densya-otoko” (Train Man) was release to the public. The movie, based on actual postings on 2ch (on the “Single Men’s” boards), is about a otaku boy who accidently meets a girl on the train. Because all his life, he had been obsessed with computers and animation, he does not have the social stills he needs to make the girl interested in him. However, in the end succeeds in getting a “real world” girlfriend. The movie, even though it emerged from 2ch and showcased the geeky culture of the internet forum nevertheless succeeded in getting more than 2 million viewers with in the first 40 days of its released, and latter even grew into a popular television drama series.

              The term “2ch” often comes up on the news as well. Because it has social influence, criminals have repeatedly used the website to harass or threat someone, prior to committing a crime, for example. A prominent example was when the 25 year old man wrote multiple posts on 2ch stating that he would kill people in the Akihabara district. Only minutes after the man posted similar statements on another internet forum from his cell phone, the man really did ram into a pedestrian-only part of Akihabara, using his truck. Because the man also killed people by running into people with his knife, his actions killed 7 people in total and injured 10 more. Especially after this incident, the police also started to take notice of the internet forum, and in several cases, people have been arrested for posting threats on 2ch.

It goes without saying that how the internet community should deal with contents on 2ch is crucial for protecting users from defamation, and copyright owners from infringement of their rights.