Online Infringement in Japan: How Can Businesses and Individuals Address Defamation, Privacy Violations, and IP Theft on the Internet?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

The internet has become an indispensable part of modern life and commerce, but its borderless nature and the anonymity it can afford have also given rise to a host of legal challenges, including online defamation, invasion of privacy, and intellectual property infringement. For businesses and individuals operating in or interacting with Japan, understanding the Japanese legal framework for addressing these online harms is crucial. This article explores the primary legal avenues available in Japan to combat such infringements, focusing on identifying anonymous posters, seeking removal of infringing content, and claiming damages.

Japan has developed a specific legal framework to address online infringements, alongside general tort and intellectual property laws.

A. Key Legislation

  1. 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 (プロバイダ責任制限法 - Purobaida Sekinin Seigen Hō): Commonly known as the Provider Liability Limitation Act, this is the cornerstone legislation for addressing online defamation, privacy violations, and other infringements facilitated by internet service providers (ISPs) and platform operators. It outlines conditions under which providers may be exempt from liability and, importantly, establishes procedures for victims to request the disclosure of an anonymous sender's identifying information.
  2. Intellectual Property Laws: The Copyright Act (著作権法 - Chosakuken Hō), Trademark Act (商標法 - Shōhyō Hō), Patent Act (特許法 - Tokkyohō), and Unfair Competition Prevention Act (不正競争防止法 - Fusei Kyōsō Bōshi Hō) provide the substantive basis for IP infringement claims, which are increasingly occurring in the online space.
  3. Civil Code (民法 - Minpō): General tort principles under the Civil Code (e.g., Article 709 for general torts, Article 723 for restoration of reputation in defamation cases) apply to online infringements.

B. Prevailing Challenges

Addressing online infringement in Japan often involves navigating challenges such as:

  • Anonymity: Identifying the original poster of defamatory or infringing content is frequently the first major hurdle.
  • Jurisdictional Issues: The global nature of the internet can create complexities when content is hosted on foreign servers or posted by individuals outside Japan.
  • Rapid Dissemination: Harmful information can spread quickly and widely online, making complete removal difficult and magnifying the damage.

II. Identifying Anonymous Posters: Disclosure of Sender Information (発信者情報開示請求 - Hasshinsha Jōhō Kaiji Seikyū)

A critical first step in seeking redress against an anonymous online infringer is to identify them. The Provider Liability Limitation Act provides a mechanism for this.

A. The Provider Liability Limitation Act, Article 4

Article 4 of this Act allows a person whose rights have been infringed by information transmitted online to request specified telecommunications service providers (which include content providers like blog hosts and access providers like ISPs) to disclose "sender information."

  • Requirements for Disclosure: The claimant must demonstrate:
    1. That their rights were "manifestly" infringed by the information transmitted (権利侵害の明白性 - kenri shingai no meihakusei). This is a high standard, requiring the claimant to show not only the infringement but also, for example in defamation cases, the absence of any justification (such as truth or public interest) for the statement.
    2. That there is a "legitimate reason" for obtaining the sender information, such as needing it to pursue a damages claim against the sender.
  • Information Subject to Disclosure: This can include the sender's name, address, email address, the IP address used to transmit the infringing information, and the timestamp of the transmission.

B. The Two-Stage Disclosure Process (for anonymous postings on platforms)

Often, the operator of a website or platform where anonymous content is posted (the "content provider") does not have the sender's name and address. They may only have an IP address and timestamp. In such cases, a two-stage process is typically necessary:

  1. Stage 1: Against the Content Provider: The victim first requests the content provider (e.g., an anonymous bulletin board operator) to disclose the IP address and timestamp associated with the infringing post.
  2. Stage 2: Against the Access Provider (Transit ISP): Using the IP address and timestamp obtained from the content provider, the victim then identifies the internet access provider (e.g., a mobile carrier or broadband ISP) that allocated that IP address at that time. A second disclosure request is made to this access provider for the name and address of the subscriber to whom that IP address was assigned. The Supreme Court (First Petty Bench, judgment of April 8, 2010) has affirmed that access providers also fall under the definition of "specified telecommunications service providers" subject to such disclosure requests.

A significant practical challenge in this second stage is that access providers typically retain IP address allocation logs for a limited period (often only 3 to 6 months). This necessitates swift action by the victim.

C. Procedural Options for Disclosure Requests

Several procedural avenues exist:

  1. Out-of-Court Request using Guideline Forms: The telecommunications industry associations have developed standardized forms based on guidelines. However, providers, citing obligations of telecommunications secrecy, rarely comply with these non-court-ordered requests for personal information.
  2. Bar Association Inquiry (弁護士会照会 - Bengoshikai Shōkai): A lawyer can make an inquiry through their bar association, but this is an evidence-gathering tool and may not compel disclosure of identifying information if secrecy obligations are invoked by the provider.
  3. Provisional Disposition (仮処分 - Karishobun): This is a common and often effective method. A court can issue a provisional order compelling disclosure. For the first stage (against content providers), this is often used to obtain the IP address and timestamp quickly. A separate provisional disposition may also be sought against the access provider to preserve the relevant logs if there's a risk they will be deleted before a disclosure order for subscriber information can be obtained.
  4. Full Lawsuit (訴訟 - Soshō): A formal lawsuit can be filed to demand disclosure. This is often necessary for the second stage (against access providers for subscriber details) or if the "manifest infringement" requirement is complex to establish.

D. Provider's Liability for Non-Disclosure

If a provider wrongfully refuses a legitimate disclosure request, they may be liable for damages caused by the non-disclosure (Provider Liability Limitation Act, Article 4, Paragraph 4). However, this requires proving the provider's intent or gross negligence in refusing the disclosure. The Supreme Court (Third Petty Bench, judgment of April 13, 2010) has interpreted this requirement strictly, holding that liability arises only if the provider knew the disclosure requirements were met, or if it was "obvious at a glance" that they were met and the provider was grossly negligent in not recognizing this.

III. Addressing Online Defamation (名誉毀損 - Meiyo Kison)

Defamation involves damaging a person's social reputation through the public dissemination of false statements of fact or expressions of opinion that go beyond fair comment.

A. Elements of Online Defamation

  • Lowering Social Reputation: The statement must have lowered, or have the potential to lower, the victim's reputation in the eyes of the general public.
  • Standard of Interpretation: Whether a statement is defamatory is judged based on how an ordinary reader with normal attention would interpret it. The Supreme Court (Second Petty Bench, judgment of March 23, 2012) has indicated that even online articles are not automatically assumed to be disbelieved by general viewers.
  • Proof of Harm: Evidence such as website access logs, the duration of publication, and the number of links to the defamatory content can be used to demonstrate the extent of potential harm. One Tokyo District Court judgment of January 21, 2015, awarded solatium calculated at ¥2,000 per day for the period a defamatory website existed.

B. Defenses

Common defenses include truth, that the matter concerned the public interest and was made for public benefit, or that it constituted fair comment on a matter of public concern.

C. Remedies

  1. Deletion Requests (送信防止措置請求 - Sōshin Bōshi Sochi Seikyū): Victims can request the removal of defamatory content from the website operator or ISP.
  2. Damages (慰謝料 - Isharyō): Compensation for emotional distress and damage to reputation.
  3. Apology: While sometimes sought, the practical remedies usually focus on deletion and monetary compensation.

IV. Combating Online Privacy Violations (プライバシー侵害 - Puraibashī Shingai)

The unauthorized disclosure of private information online constitutes an invasion of privacy.

A. Nature of Privacy Rights in Japan

While there is no single, comprehensive statutory definition of "privacy" in Japan, courts have recognized it as a legally protected personal interest (e.g., Supreme Court, Third Petty Bench, judgment of September 5, 1995, although that case specifically referred to the right to control one's likeness). Influential case law, stemming from the "After the Banquet" case (Tokyo District Court, judgment of September 28, 1964), generally establishes infringement if three elements are met:

  1. The information pertains to facts of one's private life or could be perceived as such.
  2. The information is something that a person of ordinary sensibilities, in the plaintiff's position, would not wish to be disclosed.
  3. The information was not previously known to the public ("not yet in the public domain"). However, recent court decisions suggest a more flexible interpretation of this third element, sometimes protecting information already known to a limited circle.

B. Specific Violations

Common online privacy violations include "doxing" (publishing someone's address, phone number, or other personal details without consent) and the disclosure of sensitive past information, such as old criminal records.

C. The "Right to be Forgotten" (忘れられる権利 - Wasurerareru Kenri)

There is growing judicial recognition in Japan of a concept akin to the "right to be forgotten," particularly concerning search engine results that link to outdated or irrelevant private information that causes ongoing harm. A notable Saitama District Court provisional disposition of December 22, 2015, ordered Google to remove certain search results related to an individual's past arrest, citing the need to protect the individual's ability to rehabilitate. This area of law is still evolving but offers a potential avenue for redress against the persistent online availability of certain private information.

D. Remedies

Similar to defamation, remedies include deletion of the private information and monetary damages for emotional distress.

V. Tackling Online Intellectual Property Infringement (知的財産権侵害 - Chiteki Zaisanken Shingai)

The internet is a major conduit for intellectual property infringement.

A. Types of IP Infringement Online

  1. Copyright Infringement (著作権侵害 - Chosakuken Shingai): This is rampant online and includes unauthorized reproduction (複製権 - fukuseiken), public transmission (公衆送信権 - kōshū sōshinken, which includes making available for download), and adaptation (翻案権 - hon'anken) of various works like articles, books, music, videos, and software.
  2. Trademark Infringement (商標権侵害 - Shōhyōken Shingai): The online sale of counterfeit goods is a common example.
  3. Patent Infringement (特許権侵害 - Tokkyoken Shingai): This can include infringement of business model patents used in e-commerce.
  4. Unfair Competition: Various online activities can fall under the Unfair Competition Prevention Act.

B. Identifying Infringers

As with defamation and privacy violations, identifying anonymous IP infringers often necessitates the sender information disclosure procedures outlined above.

C. Remedies

  1. Injunctions (差止請求 - Sashitome Seikyū): Right holders can seek court orders to stop the infringing activity (e.g., Copyright Act, Article 112 for copyright infringement). This can include orders for the deletion of infringing content.
  2. Deletion Requests to Platform Operators/ISPs: Similar to defamation cases, right holders can request providers to take down infringing material.
  3. Damages Claims: Compensation for losses suffered due to the infringement.
  4. Criminal Penalties: Certain types of IP infringement, particularly large-scale copyright piracy or trademark counterfeiting, can also attract criminal penalties.

VI. Deletion Requests and Liability of Service Providers

The Provider Liability Limitation Act also addresses the liability of service providers for failing to remove infringing content.

A. Deletion Requests (Transmitting Blocking Measures - 送信防止措置請求 - Sōshin Bōshi Sochi Seikyū)

While the Act primarily provides a "safe harbor" from liability for providers under certain conditions (Article 3, Paragraph 1), it also implicitly supports the practice of requesting providers to take measures to prevent the transmission of infringing information (i.e., delete it).

B. Provider Liability for Infringing Content

A provider can be held liable for damages caused by infringing information transmitted through its services if:

  1. It was technically possible for the provider to prevent the transmission of the infringing information, AND
  2. Either:
    • The provider knew that the information infringed someone's rights (Article 3, Paragraph 1, Item 1), OR
    • The provider knew of the information and the alleged infringement, or could reasonably have known of it, and yet failed to take action (Article 3, Paragraph 1, Item 2).
      This often arises when a provider is notified of an infringement (e.g., through a deletion request) but fails to act appropriately.
      A provider may also be liable if it fails to respond to a disclosure request without a justifiable reason and this delay causes further damage (Tokyo High Court, judgment of May 26, 2010).

VII. Addressing Infringement via Search Engines (検索エンジンへの対応)

Given the central role of search engines in accessing online information, having defamatory or infringing content de-listed from search results is often a key objective.

  • Victims can request search engine operators to remove specific URLs from their search results if those URLs link to infringing or harmful content.
  • The aforementioned "right to be forgotten" concept (Saitama District Court, provisional disposition of December 22, 2015) was specifically in the context of search engine results.
  • However, pursuing action against major search engine operators can be challenging, often involving foreign corporations and complex legal arguments about their role and responsibility.

VIII. Practical Strategies for Businesses and Individuals

Effectively addressing online infringements requires a proactive and strategic approach:

  • Monitor Online Presence: Regularly monitor the internet for unauthorized use of IP, defamatory statements, or privacy violations.
  • Act Promptly: Due to the rapid spread of online information and short data retention periods by ISPs for logs, swift action is crucial upon discovering an infringement.
  • Meticulous Evidence Gathering: Preserve evidence thoroughly. This includes taking screenshots of the infringing content (ensuring URLs and timestamps are visible), saving web pages, and, if possible, obtaining server logs or other technical data.
  • Choose Appropriate Legal Avenues: Evaluate whether an out-of-court takedown request, a sender information disclosure request, a provisional disposition, or a full lawsuit is the most appropriate and effective strategy.
  • Consider Broader Impacts: Beyond direct financial loss, consider the reputational damage, brand dilution, and potential business disruption caused by online infringements.

Conclusion

Responding to online defamation, privacy violations, and intellectual property theft in Japan involves navigating a specialized legal framework centered on the Provider Liability Limitation Act, alongside general civil and IP laws. The anonymity prevalent online often necessitates a multi-step process to identify perpetrators before substantive remedies can be pursued. While Japanese law provides tools for victims, the procedures can be complex and time-consuming. For businesses and individuals facing such infringements, obtaining prompt and expert legal advice is paramount to effectively protect their rights, mitigate damage, and seek appropriate redress in the ever-evolving digital landscape.