Delete Policy of “2ch”

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.

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.

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.

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.

“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 (ン) and so (ソ) 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.