In today's digitally interconnected world, breaking news often unfolds in real-time on personal blogs, social media platforms like X (formerly Twitter) and Facebook, and other online channels. Eyewitness photographs, videos of unfolding events, and personal accounts from those directly involved can provide invaluable, immediate material for news organizations. However, the use of such readily available online content—particularly images and posts related to criminal suspects, victims, or disaster scenes—by Japanese news broadcasters raises a host of complex legal issues, primarily centered on copyright, portrait rights, and privacy. This article explores how Japan's copyright exceptions, such as "quotation" and "use for reporting current events," apply in these scenarios.

Copyright in Online Content: Photos, Videos, and Social Media Posts

Before considering exceptions, it's essential to establish whether the online content in question is protected by copyright under Japanese law.

1. Photographs and Videos: Original photographs and videos posted online by users are generally considered "works" protected by copyright, provided they exhibit a minimal level of creativity in their composition, subject selection, or presentation. The copyright typically belongs to the individual who took the photograph or created the video (often, but not always, the uploader).
2. Short Social Media Posts (e.g., Tweets, Facebook Status Updates):
   • Extremely short, factual statements or commonplace expressions (e.g., "Heavy rain in Shibuya now") are unlikely to meet the threshold of creativity required for copyright protection.
   • However, even brief textual expressions can be copyrighted if they demonstrate originality and express a thought or sentiment in a creative way. For instance, a uniquely worded observation, a short piece of commentary, or even a well-crafted, original "tweet" could qualify. The Tokyo High Court in the Hotel Junkies Case (judgment of October 29, 2002), which concerned online bulletin board posts, indicated a tendency to find copyrightability in online user-generated text unless it is clearly a stereotyped phrase or devoid of any individual creative expression. Therefore, it is often prudent to assume that a distinct social media post has copyright protection unless it is manifestly unoriginal.
3. Platform Terms of Service and Copyright Ownership: It's important to note that while users typically retain copyright in the content they post to major social media platforms like X and Facebook, their terms of service usually grant the platform itself extensive, non-exclusive licenses to use, distribute, and display that content. These platform licenses may also allow for certain uses by third parties through the platform's functionalities (e.g., embedding a public tweet or Facebook post on a website). However, when a news organization directly copies an image or text from a social media platform and incorporates it into its own broadcast program, the legality of that specific act is primarily assessed under Japan's statutory copyright exceptions, rather than just relying on the platform's terms of service between the user and the platform.

Justifying News Use: "Quotation" (Article 32) and "Reporting Current Events" (Article 41)

When a Japanese news broadcaster uses copyrighted online material without explicit permission, they typically rely on one of two key exceptions in the Copyright Act:

A. The "Quotation" (引用 - in'yō) Exception (Article 32)

Article 32 permits the quotation of publicly available copyrighted works if the quotation is compatible with fair practice and its extent does not exceed that justified by the purpose (e.g., news reporting, criticism, research). For news use of an online photo or a social media post, the following considerations apply:

1. Publicly Available Work: Content posted on public blogs, open social media profiles (e.g., a public X feed or a public Facebook page) generally meets this requirement. However, crucial difficulties arise with content posted with restricted privacy settings (e.g., a "friends-only" Facebook post or a protected X account). Such content is likely not considered "publicly available" for Article 32 purposes, making quotation impermissible without consent. Using such material would also raise severe privacy concerns.
2. Clear Distinction and Main/Subordinate Relationship: When a news report uses an online photograph to identify a suspect or victim, or displays an SNS post to illustrate public reaction or an eyewitness account, the visual or textual quote is typically subordinate to the overall news narrative being presented by the broadcaster. The distinction between the quoted online material and the broadcaster's own reporting is usually clear (e.g., the photo is shown on screen often with a caption, or an SNS post is displayed as a graphic with accompanying narration).
3. Justifiable Purpose and Extent: Using a photo to identify an individual who is central to a significant news story (e.g., a suspect in a major crime, a prominent victim whose identity is newsworthy and permissibly disclosed) or using an eyewitness photo/video to illustrate a current event (like a natural disaster or accident) generally constitutes a justifiable purpose for news reporting. The extent of use must be reasonable – for instance, not displaying a single photograph for an unnecessarily prolonged duration without accompanying journalistic commentary or context.
4. Fair Practice: This is a flexible but vital element. "Fair practice" takes into account industry customs and the overall ethical context. For example, routinely lifting exclusive photographs from another news organization's website and claiming it as "quotation" would likely not be considered fair practice. However, using a publicly posted eyewitness photograph of a fast-breaking disaster scene, especially if attempts to contact the uploader are ongoing or impractical due to the urgency, and provided proper attribution is given where possible, might be considered compatible with fair practice for news reporting. The impact on the original uploader's potential market for the image would also be a factor.

Using a suspect's profile picture from their public blog or social media feed to identify them in a crime report can often be justified as a quotation, as the image serves the informational purpose of the news report, is clearly distinct, and is subordinate to the overall journalistic narrative. Similarly, quoting relevant public SNS posts can be legitimate.

B. "Use for Reporting Current Events" (時事の事件の報道のための利用 - jiji no jiken no hōdō no tame no riyō) (Article 41)

This exception is specifically tailored for news reporting and allows the reproduction and exploitation of a work implicated in a current event, to the extent justified by the informational purpose.

1. Application to Pre-existing Suspect/Victim Photos: For a pre-existing portrait photograph of a suspect or victim (e.g., from their blog, social media profile, or a yearbook), a strict textual interpretation of Article 41 might find it challenging to argue that the photograph itself "constitutes the event" or was "seen or heard in the course of the event" (the crime or incident). The photo existed before or separately from the core news event. However, some legal scholars in Japan argue for a broader, more purposive interpretation of Article 41, suggesting that if a work has a "substantial connection" (sōtō na kanrensei) to the event being reported and is crucial for public understanding (e.g., identifying a person of interest), its use might be permissible. This area is subject to ongoing legal interpretation.
2. Application to Eyewitness Photos/Videos of Events from Social Media: This scenario often fits more comfortably within Article 41.
   • If the very act of an eyewitness posting a significant photo or video online becomes a newsworthy part of the event itself (e.g., "First dramatic footage of the earthquake aftermath emerges on X from a local resident"), then the online post (the photo/video) can be considered a work "constituting" that specific element of the unfolding current event. This is analogous to the reasoning in the Yakuza Succession Video Case (Tokyo District Court, judgment of March 23, 1993), where the gang's internal video and its distribution were treated as part of the newsworthy activities being reported. The "Senkaku video leak" incident, where confidential footage was uploaded to YouTube, is another prime example where the leaked online video itself was the central news event, justifying its reproduction under Article 41.
   • Even if the act of posting isn't the primary news, if an eyewitness photo or video uniquely and directly depicts the core current event (e.g., the only available image of a disaster scene taken by someone present), it can be strongly argued that the work is "seen in the course of the event" from the perspective of its online dissemination as part of the immediate information flow surrounding that event.
3. Application to Social Media Posts as Public Reaction: If there is significant public reaction to a current event expressed via platforms like X or Facebook, quoting these posts (if they are original enough to be copyrighted) can often be justified under Article 41 as reporting on an important facet of the overall event – namely, the public's response and discourse.

Portrait Rights (肖像権) and Privacy (プライバシー権) Considerations

Beyond the copyright in the photograph, video, or text (which typically belongs to the creator/uploader), the individuals depicted in images or identified in posts have separate personality rights, including portrait rights and the right to privacy, which must be respected.

• Suspects in Crime News: In Japan, for serious crimes, there is generally a recognized public interest in identifying suspects. Using an existing, publicly accessible photograph (e.g., from their public blog, social media profile, or a school yearbook obtained through legitimate means) to show the likeness of an officially named suspect is often considered permissible within the "socially acceptable limits" (junin gendo) of portrait rights, provided the overall news reporting is accurate and legitimate.
• Victims of Crime: Far greater caution and sensitivity are required when dealing with images or identifying information of victims. Their privacy is paramount. Using a victim's photo sourced online without their explicit consent (or that of their family, if the victim is deceased or incapacitated) is rarely justifiable unless there are truly exceptional circumstances of overriding public interest (e.g., a missing person case where widespread publication of a photo is crucial for finding them, with police/family approval).
• Content from Restricted/Private Social Media Settings: Broadcasting content (text, photos, or videos) taken from a "friends-only" Facebook post, a protected X (Twitter) account, or any other non-public online space carries extremely high risks of infringing privacy rights. Such content is not "publicly available" for the purpose of copyright exceptions like quotation, and its unauthorized public dissemination would almost certainly breach reasonable expectations of privacy, leading to potential legal liability. Even if a journalist gains access to such restricted content legitimately (e.g., by being an accepted "friend" of the user), this does not confer a right to publicly broadcast that private content.

Source Attribution (出所の明示) for Online and Social Media Content

Article 48 of the Copyright Act requires that the source of a work be indicated when it is used under exceptions like Article 32 (quotation) or Article 41 (reporting current events), if it is customary to do so for that particular type of work and manner of use in broadcasting.

• Photographs of Suspects/Victims from Blogs, Yearbooks, etc.: For television news in Japan, there isn't a rigidly established, universal custom of crediting the original photographer every time a pre-existing blog photo or yearbook picture is used to show a suspect's likeness. Practical issues such as limited screen space and the difficulty in definitively identifying the original photographer of images that may have been widely circulated online are contributing factors. However, a growing and recommended practice is to provide a general source indication, such as "Source: Blog," "Image via X," "Courtesy of Viewers," or "From Graduation Album." This serves to clarify that the image is not the broadcaster's original work and can function as a form of source indication that is reasonable under the circumstances.
• Social Media Posts (Tweets, Facebook Updates):
  • The terms of service and brand guidelines of platforms like X and Facebook often recommend specific ways to display user content when featured in media, such as showing the user's full name (if public), @username or profile name, timestamp, and profile picture. While these platform guidelines are not copyright law themselves, they can influence what is considered "fair practice" or "customary" for source attribution.
  • Common media practice in Japan when displaying an SNS post is to show the account name/username and often the user's public profile picture. This generally serves as adequate source attribution for the post itself.
• Eyewitness Photos/Videos from Public Feeds: Identifying the true original uploader and copyright holder of viral images or videos that have been rapidly reposted across multiple platforms (often without credit) can be extremely difficult. Journalistic best practice involves making reasonable efforts to trace and credit the original source. If the original account is clearly identifiable, crediting that account is generally desirable. However, this needs to be balanced against potential negative consequences for the uploader (e.g., unwanted harassment, online "flaming," or even safety risks if the content is from a dangerous or controversial situation). In some cases, where specific attribution is problematic or impossible, a more generic attribution like "Source: Social Media" or "Provided by Viewer" might be used, though efforts should be made to be as specific as is responsibly possible.

The Journalistic Imperative: Verifying Authenticity

Entirely separate from copyright, portrait rights, and privacy considerations is the fundamental ethical and professional duty of news organizations to verify the authenticity and accuracy of any information and media sourced from online platforms before broadcasting it. This includes taking reasonable steps to confirm that photographs or videos are genuine depictions of the events they purport to show, have not been misleadingly edited or digitally faked, and are being presented in their proper context.

Obtaining Explicit Permission: The Gold Standard (When Feasible)

While copyright exceptions provide a legal basis for using online content in news reporting without permission in certain circumstances, the safest and most ethically sound approach is always to attempt to directly contact the uploader, creator, or relevant rights holder of online photos, videos, or significant textual posts to obtain their explicit permission for broadcast use. This preempts reliance on the sometimes complex and fact-dependent application of copyright exceptions and fosters better relations with content creators.

However, obtaining such permission can be challenging:

• Identifying and contacting anonymous or pseudonymous online users can be difficult or impossible.
• Social media platform restrictions (e.g., X's limitations on sending Direct Messages to users who do not follow you) can hinder private communication attempts.
• Publicly contacting a user via their social media feed to request permission can prematurely disclose journalistic interest in a story, potentially alerting other media or involved parties, or it could even trigger negative online reactions ("piling on") if the request is perceived as insensitive or exploitative, especially in breaking news or tragic situations.

If a television program invites viewers to submit content using a specific, program-designated hashtag, there is a stronger argument that users who post content with that hashtag are implicitly consenting to its potential use by the program for broadcast, especially if the program has clearly communicated terms regarding such submissions. However, the specifics of the call-out, the nature of the content submitted, and the context still matter.

Conclusion

The use of online photographs, videos, and social media posts depicting suspects, victims, or current events is an increasingly integral part of modern news reporting in Japan. Such use can often be legally justified without explicit permission by carefully applying the principles of copyright exceptions found in Article 32 (quotation) or Article 41 (use for reporting current events) of the Japanese Copyright Act.

The key considerations for relying on these exceptions include the public availability of the content (especially crucial for quotation), its direct relevance and proportionality to a genuine current news story, and adherence to customary source attribution practices where applicable. It is also vital to remember that the copyright status of very short or factual social media posts may be debatable, but it is often more prudent to assume copyrightability for distinct expressions of thought or sentiment.

Crucially, these copyright considerations must always be balanced with a profound respect for the portrait rights and privacy of any individuals depicted or identified, particularly when dealing with victims of crime or content shared with restricted privacy settings online. Finally, the journalistic duty to verify the authenticity of all sourced online content remains paramount. While obtaining explicit permission from creators is always the ideal, the realities of fast-paced news cycles often necessitate a judicious and ethically informed reliance on Japan's statutory copyright exceptions.