Cybersecurity

Content Moderation and Intermediary Liability in Japan: Understanding the Revised Provider Liability Act

Japanese Attorney at Law - Bengoshi L.L.

• 10 min read
Slide summary: Japan’s revised Provider Liability Act—7-day takedown, single-step sender disclosure, updated safe harbours
TL;DR: Japan’s revised Provider Liability Act modernises notice-and-takedown, streamlines sender-disclosure into a single-step court order, and clarifies intermediary safe harbours. Platforms now face tighter deadlines, record-keeping duties, and potential statutory damages—requiring robust moderation workflows and legal triage.

Table of Contents

  1. Introduction: A New Era of Platform Accountability
  2. Overview of the Revised Provider Liability Act
  3. Content Moderation Duties: Enhanced Notice-and-Takedown
  4. Sender Information Disclosure: From Two Steps to One
  5. Liability, Safe Harbours and Damages
  6. Practical Implications for Online Services
  7. Conclusion: Balancing Freedom of Expression and Protection

Introduction

The proliferation of online platforms, particularly social media, forums, and video-sharing sites, has revolutionized communication but also created unprecedented challenges in managing harmful user-generated content. Defamation, harassment, invasion of privacy, and other rights infringements spread rapidly in the digital realm, causing significant harm to individuals and society. Addressing this issue requires balancing the need for effective remedies for victims with the protection of freedom of expression, all while defining the appropriate level of responsibility for the platforms hosting the content.

Japan has grappled with these issues for years, initially establishing the Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (commonly known as the Provider Liability Limitation Act, or PLPA - プロバイダ責任制限法). This law provided a crucial framework, offering internet service providers (ISPs) and platform operators a conditional safe harbor from liability and setting procedures for victims to identify anonymous posters. However, growing concerns about the speed and transparency of content removal processes under the original PLPA led to significant reforms.

In May 2024, the Japanese Diet enacted Act No. 25 of 2024, which fundamentally amends the PLPA. The amendment not only introduces new obligations for large platform operators regarding content moderation but also renames the law to the "Act on Countermeasures for Rights Infringement including Defamation and Disclosure of Sender Information by Specified Telecommunications Service Providers" (特定電気通信による情報の流通によって発生する権利侵害等への対処に関する法律), often referred to by its abbreviation Jouhou Ryuutsū Platform Taisho Hou (情報流通プラットフォーム対処法, or roughly, "Information Distribution Platform Countermeasure Act"). This name change itself signals a significant policy shift – from merely limiting liability to requiring platforms to take active countermeasures.

This article analyzes the key provisions of this revised law, focusing on the new procedural and transparency duties imposed on large platforms, the rationale behind these changes, and their implications for platform operators, users, and the broader online ecosystem in Japan.

1. Background: The Original Provider Liability Limitation Act (PLPA) and its Limitations

Enacted in 2001, the original PLPA served two primary functions:

  1. Liability Safe Harbor: Similar in concept (though different in detail) to Section 230 of the Communications Decency Act in the US, the PLPA limited the civil liability of "Specified Telecommunications Service Providers" (a broad category including ISPs, web hosts, and platform operators) for damages caused by information transmitted through their services. Liability was generally avoided if the provider lacked knowledge of the infringing content or if, upon gaining knowledge, it took necessary and feasible steps to prevent transmission (e.g., takedown), provided it wasn't technically impossible (former PLPA Art. 3).
  2. Sender Identification Disclosure: It established a legal framework allowing victims of online rights infringement (like defamation) to request that providers disclose the identification information (name, address, IP address, timestamps) of the anonymous users who posted the infringing content, enabling victims to pursue legal action against the originators (former PLPA Art. 4, now revised and expanded in Chapter 3 of the new law). Subsequent amendments in 2021 (effective 2022) introduced a new, simplified non-contentious court procedure to streamline this disclosure process.

Limitations Regarding Content Removal:
While the PLPA provided a liability shield and a path for sender identification, it offered limited recourse regarding the speed and process of content removal itself. Victims often faced challenges:

  • Unclear Procedures: Platform operators had varying, often opaque, internal processes for handling takedown requests. Contact points were sometimes difficult to find.
  • Slow Response Times: Platforms could take considerable time to investigate and decide on removal requests, during which the harmful content continued to spread.
  • Lack of Transparency: Platforms were often not obligated to provide clear reasons for refusing takedown requests, nor were they required to inform the original poster when their content was removed, potentially hindering redress or appeals.
  • Balancing Act Challenges: Platforms themselves faced difficulties in balancing takedown demands with concerns about over-removal and protecting legitimate expression, often lacking clear legal guidance on procedural requirements.

These shortcomings, particularly highlighted by tragic incidents linked to online harassment, fueled calls for reform focused on improving the responsiveness and transparency of platform content moderation practices.

2. The 2024 Overhaul: Shifting Focus to Platform Duties

The May 2024 amendments represent a significant departure, moving the law's emphasis towards imposing proactive duties on certain platform operators.

  • New Law, New Name: As mentioned, the renaming to the "Act on Countermeasures..." reflects this shift. It's no longer just about liability limitation; it's about mandating specific actions to address online harms.
  • Targeting Large Platforms (Designation System): Recognizing that imposing complex procedural duties on all online services could be overly burdensome, the new core obligations apply only to designated "Large Specified Telecommunications Service Providers" (daikibo tokutei denki tsuushin ekimu teikyousha) (New Law Art. 20).
    • Designation Criteria: Designation is made by the Minister for Internal Affairs and Communications (MIC) based primarily on scale. The criteria generally involve exceeding specific thresholds for average monthly active users (MAUs) or monthly posts, with different thresholds potentially set for services requiring user registration (like SNS) versus those that don't (like anonymous forums). Services with minimal risk of rights infringement are excluded.
    • Process: Designation is typically based on self-reporting by providers, but MIC can estimate user numbers using reasonable methods (e.g., surveys) if reports are lacking or unreliable.
    • Foreign Providers: Foreign entities designated as large providers must appoint and notify the MIC of a domestic representative or agent in Japan (kokunai daihyousha tou) to facilitate communication and enforcement (New Law Art. 21). This ensures foreign platforms serving the Japanese market are subject to the same regulatory reach as domestic ones.

3. New Obligations for Designated Platforms: Process & Transparency

The heart of the reform lies in the new procedural and transparency duties mandated for these designated large platforms. These duties focus how platforms handle content issues, rather than dictating what content must be removed.

3.1. Expediting Takedown Requests (Responding to Victims - Arts. 22-25)

To address delays and lack of clarity in handling victim complaints:

  • Establish Clear Procedures (Art. 22): Designated platforms must establish and publicly disclose their methods for receiving takedown requests (sakujo moushide) from individuals claiming their rights have been infringed by specific online content. These methods must be reasonably accessible (including electronic means) and not impose an undue burden on the requester.
  • Duty to Investigate Promptly (Art. 23): Upon receiving a properly formatted takedown request, the platform must, without delay (chitai naku), conduct the necessary investigation (chousa) to determine whether the identified information infringes the requester's rights.
  • Utilize Internal Experts (Art. 24): For investigations requiring specialized knowledge (e.g., complex legal or technical assessments), platforms must ensure they have access to a sufficient number of personnel with adequate expertise ("Infringing Information Investigation Specialists" - shingai jouhou chousa senmon'in), whether internal or external.
  • Timely Notification to Requester (Art. 25): This is a key procedural requirement. After investigating, the platform must decide whether to implement "transmission prevention measures" (soushin boushi sochi - i.e., takedown/removal) and notify the requester of its decision.
    • Deadline: This notification must generally occur within a period specified by MIC ordinance, starting from the date the request was received (expected to be around one week based on preparatory discussions).
    • Content of Notice: If measures are taken, the notice confirms this. If measures are not taken, the platform must notify the requester of this decision and provide the reason.
    • Exceptions Allowing Delay: The law allows for extending the decision notification deadline beyond the standard period under specific circumstances, provided the platform notifies the requester within the initial period that an exception applies. These exceptions include:
      1. Needing to consult the original sender (hasshinsha) for their opinion (a common step under the old PLPA safe harbor logic).
      2. Needing to have the investigation conducted by the designated internal experts (Art. 24).
      3. Other justifiable reasons (yamu wo enai riyuu).
        Even in these cases, the final decision and reason must still be notified "without delay" after the circumstance causing the extension ceases. This aims to prevent indefinite delays while allowing necessary steps like sender consultation.

3.2. Enhancing Content Moderation Transparency (Responding to Senders & Public - Arts. 26-28)

To address concerns about opaque or arbitrary content removal by platforms:

  • Published Criteria (Art. 26): Designated platforms must formulate and publicly disclose their criteria ("Transmission Prevention Measures Implementation Standards" - soushin boushi sochi no jisshi ni kansuru kijun) detailing the types of information that are subject to transmission prevention measures (including not just removal but also account suspension - akautei).
    • Clarity Requirement: Platforms must endeavor (tsutomenakereba naranai) to make these criteria as specific and understandable as possible for users.
    • Reference Examples: They must also endeavor to create and publish reference examples (sankou jireishuu) illustrating how the criteria have been applied in practice.
    • Emergency Exception: Platforms can still take action against unforeseen types of harmful content not explicitly covered by the published criteria if urgently necessary, but must promptly update their criteria afterward.
  • Notification to Senders (Art. 27): When a platform takes transmission prevention measures (like removing a post or suspending an account), it generally must notify the sender (hasshinsha) of the action taken and the reason, or make this information readily accessible to them (e.g., via an account dashboard).
    • Purpose: This allows senders to understand why action was taken, potentially contest the decision with the platform if they believe it was erroneous or unfair, and provides information potentially useful if challenging the removal legally.
    • Exceptions: Notification is not required under certain circumstances, such as when contacting the sender is impossible, when notification has already been given for similar repeated violations, or when notification poses a significant risk of secondary harm to the victim (e.g., revealing a victim's complaint to an abuser).
  • Annual Transparency Reporting (Art. 28): Designated platforms must publish a report at least once a year detailing their content moderation activities. The specifics are left to MIC ordinance but are expected to include statistics on the number of takedown requests received, actions taken, processing times, reasons for action, information on appeals or disputes, etc. This mirrors transparency reporting requirements in other jurisdictions like the EU under the DSA.

4. Analyzing the Approach: Balancing Rights and Responsibilities

The revised Japanese law represents a distinct approach to platform regulation compared to other major jurisdictions:

  • Procedural Focus: Unlike models that might impose direct obligations on platforms to proactively monitor for and remove illegal content, the Japanese reform primarily focuses on imposing procedural obligations. It mandates how platforms must handle takedown requests and how they must communicate their moderation policies and actions, rather than dictating the substantive outcome of moderation decisions in most cases. The judgment of whether content is actually infringing generally remains with the platform or the courts.
  • Freedom of Expression Considerations: This procedural focus is arguably designed to mitigate concerns about direct government censorship or excessive interference with freedom of expression (Constitution Art. 21). By regulating process rather than mandating specific content outcomes, the law attempts to preserve platform autonomy in content decisions while improving accountability and responsiveness.
  • Potential for "Collateral Censorship"? However, critics might argue that imposing strict deadlines and procedural requirements could still inadvertently lead to "collateral censorship." Risk-averse platforms might err on the side of removing borderline content to ensure compliance with timelines and avoid regulatory scrutiny, even if the content is not clearly illegal. The requirement to notify senders and provide reasons (Art. 27) acts as a potential counter-balance, allowing users to challenge perceived over-removal.
  • Comparison with International Models:
    • US (CDA 230): Provides very broad immunity for platforms from liability for third-party content, with minimal procedural requirements mandated by federal law. The Japanese approach imposes significantly more procedural obligations on large platforms.
    • EU (Digital Services Act - DSA): The DSA is far more comprehensive, including not only procedural due process requirements (notice-and-action, user appeals, transparency reporting, similar to the Japanese reforms) but also substantive obligations regarding the handling of illegal content, risk assessments for very large platforms, algorithmic transparency, and more. Japan's revised law is narrower in scope, focusing primarily on procedural aspects of takedown requests and moderation transparency for designated large entities.

Japan's revised PLPA can be seen as occupying a middle ground, moving beyond the broad immunity of CDA 230 but stopping short of the comprehensive substantive and procedural rulebook of the EU's DSA, focusing instead on process-oriented duties for major players.

5. Implications for Platform Operators

For large platforms operating in Japan and meeting the designation criteria, the revised law necessitates significant operational and compliance efforts:

  • Process Re-engineering: Existing systems for receiving, investigating, and responding to takedown requests likely need substantial upgrades to meet the new timeliness and notification requirements. User-friendly interfaces for submitting requests (Art. 22) and accessing decisions/reasons (Art. 25, 27) are required.
  • Policy Development and Publication: Content moderation policies must be clearly formulated, published, and regularly updated to comply with Article 26, likely requiring more detail and concrete examples than previously common.
  • Resource Allocation: Increased investment in content moderation staff, legal/policy experts (including the required "Infringing Information Investigation Specialists"), and technological systems for tracking and notification will be necessary.
  • Transparency Reporting: Systems must be established to collect the data needed for annual transparency reports under Article 28.
  • Domestic Representation: Foreign-based platforms designated under the law must ensure they have a registered domestic representative capable of handling communications with the MIC.
  • Compliance Risk Management: Failure to adhere to the new procedural duties carries risks of administrative guidance, orders, and potential criminal penalties (including corporate fines up to ¥100 million for certain violations - Art. 37), alongside reputational damage.

Conclusion

The 2024 revision of Japan's Provider Liability Limitation Act (now the "Act on Countermeasures...") signifies a crucial evolution in the country's approach to online content moderation and intermediary responsibility. Moving away from a predominantly liability-focused safe harbor, the law now imposes specific procedural and transparency obligations on designated large platform operators.

The core changes—mandating clear and timely processes for handling takedown requests from victims, requiring publication of moderation criteria, and obligating notifications to both requesters and content senders—aim to enhance accountability and responsiveness in addressing online harms like defamation and harassment. By focusing on process rather than dictating content outcomes, the law seeks to strike a balance between protecting users and preserving freedom of expression.

For global platform companies with a significant presence in Japan, adapting to these new requirements will demand substantial operational adjustments and a renewed focus on procedural diligence and transparency. While the framework is less comprehensive than the EU's Digital Services Act, it represents a clear move towards greater regulatory oversight of large platforms' content moderation practices in Japan. The effectiveness of this new approach in achieving a safer and more accountable online environment will be closely watched by policymakers, businesses, and users alike in the coming years.