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.­­­