What Remedies Are Available for Defamation and Invasion of Privacy Under Japanese Law?

In an increasingly interconnected world, the protection of an individual's reputation and personal sphere from unwarranted intrusion is a significant legal concern. Japanese law provides avenues for redress when a person's honor is wrongfully attacked (defamation - 名誉毀損 - meiyo kison) or their privacy and personality rights (人格権・プライバシー侵害 - jinkakuken / puraibashī shingai) are infringed. These protections extend to both natural persons and, in certain contexts, legal entities. This article outlines the key legal principles and remedies available in Japan for these types of torts.

Defamation (Meiyo Kison 名誉毀損)

Defamation in Japan centers on the concept of "honor" (名誉 - meiyo), which is understood as the objective social evaluation of a person's character, virtue, reputation, credit, and other personal attributes. This social standing is what the law seeks to protect.

What Constitutes Defamation?

• Lowering of Social Evaluation: The core of defamation is an act that lowers a person's estimation in the eyes of society. It is not merely about the victim's subjective feelings of being offended (名誉感情 - meiyo kanjō); while such feelings might be relevant for other types of personality rights claims, defamation specifically concerns damage to one's external reputation.
• Applicability to Legal Entities: Corporations and other legal entities can also suffer defamation if their social evaluation (e.g., business reputation, creditworthiness) is harmed (Supreme Court, January 28, 1964, Minshu 18-1-136, concerning defamation of a hospital foundation ).
• Truth of the Statement: Importantly, under Japanese law, a statement can be defamatory even if it is true, provided it lowers the subject's social evaluation. However, as discussed below, truth can be a crucial element in establishing a defense. (Some constitutional law scholars argue, considering freedom of expression, that only false statements should give rise to defamation liability ).
• Media Defamation: When defamation occurs through media such as newspapers or television, whether social evaluation has been lowered is judged based on the "ordinary reader's common attention and interpretation" or the "ordinary viewer's common attention and viewing method" (e.g., Supreme Court, July 20, 1956, Minshu 10-8-1059 for newspapers; Supreme Court, October 16, 2003, Minshu 57-9-1075 for television, known as the Tokorozawa Dioxin Contamination Report Case ). Even if a publication is known for sensationalism, if it functions as a news medium, readers may still assume some degree of truth, creating a risk of reputational harm (Supreme Court, May 27, 1997, Minshu 51-5-2009 ).

Defenses to Defamation: Balancing Reputation and Freedom of Expression

Recognizing the tension between protecting reputation and upholding freedom of expression (a constitutionally guaranteed right), Japanese law provides for significant defenses to defamation claims, often referred to as "grounds for exemption from liability" (免責法理 - menseki hōri). These defenses typically require the defendant to prove certain conditions:

1. The Truth Defense (真実性の抗弁 - Shinjitsusei no Kōben):
   A defendant can be exempt from liability for a defamatory statement if they prove all of the following:
   • The asserted facts are true in their essential parts (Supreme Court, October 20, 1983, Hanrei Jihō 1112-44 ). The truth of every minor detail is not necessarily required. The assessment of truth is made objectively by the court based on the evidence available at the time of the final oral arguments in the fact-finding stage of the trial (Supreme Court, January 29, 2002, Hanrei Jihō 1778-49 ).
   • The matter disclosed relates to facts of public interest (公共の利害に関する事実 - kōkyō no rigai ni kansuru jijitsu).
   • The act of disclosure was done solely for the public benefit (公益を図る目的 - kōeki o hakaru mokuteki).
     A landmark case establishing these conditions is the Supreme Court judgment of June 23, 1966 (Minshu 20-5-1118 ), which concerned newspaper reporting on a political candidate's prior criminal record.
2. The Reasonable Grounds / Substantiality Defense (相当性の抗弁 - Sōtōsei no Kōben):
   Even if the defendant cannot definitively prove the truth of the defamatory facts, they may still be exempt from liability (on the basis of lacking intent or negligence) if they can prove specific facts demonstrating that they had reasonable grounds to believe the stated facts were true at the time of publication (Supreme Court, June 23, 1966 ).
   • Merely stating something that is "well-known" is insufficient if the information was not obtained from a reliable source and reasonably investigated (Supreme Court, September 9, 1997, Minshu 51-8-3804 ).
   • The so-called "wire service defense" (配信サービスの抗弁 - haishin sābisu no kōben), where a media outlet republishes information from a reputable news agency, is generally not accepted as automatically establishing reasonable grounds if the content concerns private individuals' alleged criminal acts or scandals, without some independent verification by the republisher (e.g., Supreme Court, January 29, 2002, Minshu 56-1-185 ). However, if the republishing newspaper and the news agency can be seen as having an integrated reporting structure, reasonable grounds for the agency might extend to the newspaper (Supreme Court, April 28, 2011, Minshu 65-3-1499 ).
   • Reliance on the factual findings of a first-instance criminal court judgment is generally considered to provide reasonable grounds for believing those facts to be true (Supreme Court, October 26, 1999, Minshu 53-7-1313 ).
   • The assessment of whether reasonable grounds existed is based on the actor's knowledge and the information available to them at the time of the defamatory act, not on information that only came to light later (Supreme Court, January 29, 2002 ).

Defamation by Opinion or Commentary

Pure expressions of opinion or commentary, as distinct from assertions of fact, are generally afforded greater protection. If an opinion or critique, even if harsh, does not go beyond the bounds of fair comment and does not amount to a personal attack unrelated to the subject matter, it typically does not give rise to tort liability for defamation, regardless of whether the opinion itself is considered rational or not (Supreme Court, April 24, 1987, Minshu 41-3-490 ). This principle is vital for safeguarding freedom of thought and expression, including expressions of legal opinion (Supreme Court, July 15, 2004, Minshu 58-5-1615 ).

However, if an opinion or commentary implies underlying defamatory facts, liability can arise based on those implied factual assertions. In such cases, where an opinion is based on asserted facts, the defenses of truth or reasonable grounds apply to the underlying factual premises of the opinion. If these underlying facts are proven true (or were reasonably believed to be true), and the matter is of public interest and published for public benefit, the expression of opinion is generally protected, provided it does not devolve into an abusive personal attack (Supreme Court, September 9, 1997 ).

Defamation of the Deceased

While criminal law offers some protection against intentional false statements defaming the deceased (Criminal Code Art. 230(2) ), and copyright law protects certain post-mortem moral rights of authors (Copyright Act Art. 60 ), the situation in tort law is more nuanced. Since a deceased person cannot hold rights, a direct claim for defamation of the deceased themselves is problematic.

The prevailing view in Japanese tort law is that a claim may lie for the surviving family members if false statements about the deceased infringe upon the survivors' own personality rights, specifically their "feelings of respect and remembrance" (敬愛追慕の情 - keiai tsuibō no jō) for the deceased, and this infringement exceeds socially tolerable limits. This was the approach taken in the Rakujitsu Moyu ("The Setting Sun Burns") case (Tokyo District Court, July 19, 1977, Hanrei Jihō 857-65 ).

Personality Rights (Jinkakuken) and the Right to Privacy

Beyond social reputation, Japanese law also protects broader "personality rights" (jinkakuken), which are considered to derive from the fundamental principle of human dignity, often linked to Article 13 of the Constitution. These rights encompass:

• The free development of one's personality, including autonomy, self-determination, freedom of action, and freedom of thought and belief.
• The protection of one's private sphere, including aspects like one's name and likeness.

The right to privacy (プライバシーの権利 - puraibashī no kenri) is a key component of these personality rights. Its understanding in Japan has evolved:

1. Privacy as the Right to a Peaceful Private Life (平穏生活権としてのプライバシーの権利 - Heion Seikatsuken to shite no Puraibashī no Kenri):
   Initially, privacy was understood primarily as the "right to be let alone" – the right not to have one's private life unreasonably disclosed or interfered with. This was famously articulated in the Utage no Ato ("After the Banquet") case (Tokyo District Court, September 28, 1964, Kakyū Minshū 15-9-2317 ). This includes the right not to have sensitive personal information, such as prior criminal convictions, unreasonably made public (Supreme Court, April 14, 1981, Minshu 35-3-620 ).
   For an infringement of this aspect of privacy to be actionable, the disclosed matter typically must be:
   • Something a person of ordinary sensibilities would not want disclosed.
   • Not yet generally known to the public.
   • The disclosure must have actually caused the individual feelings of displeasure or anxiety (e.g., Nonfiction Gyakuten case, Supreme Court, February 8, 1994, Minshu 48-2-149, concerning the publication of a past criminal record using the plaintiff's real name ).
     This right is balanced against legitimate public interest and freedom of information; disclosure of private matters concerning public figures or issues of genuine public concern may be permissible within reasonable limits.
2. Privacy as the Right to Control One's Own Information (自己情報コントロール権としてのプライバシーの権利 - Jiko Jōhō Kontorōruken to shite no Puraibashī no Kenri):
   A more modern facet of privacy is the right to control information about oneself. This underpins much of Japan's personal information protection legislation. It recognizes an individual's interest in managing the collection, use, and disclosure of their personal data.
   Examples of interests protected under this or related personality rights concepts include:
   • Name (氏名 - Shimei): Considered a symbol of individual personality and a component of personality rights (Supreme Court, February 16, 1988, Minshu 42-2-27 ).
   • Likeness/Portrait (肖像 - Shōzō): Individuals generally have the right not to have their likeness photographed or otherwise depicted and published without their consent (Supreme Court, Grand Bench, December 24, 1969, Keishū 23-12-1625, regarding unauthorized photography; Supreme Court, November 10, 2005, Hanrei Jihō 1925-84, concerning courtroom sketches of a defendant ).
   • Other Personal Data: Even seemingly less sensitive personal data like student ID numbers, names, addresses, and phone numbers can be protected if the individual has a reasonable expectation that such information will not be disclosed without their consent (Waseda University Jiang Zemin Lecture Attendee List Case, Supreme Court, September 12, 2003, Minshu 57-8-973, where a university's disclosure of student attendee data to police without consent was found tortious ).
   • Fingerprints (指紋 - Shimon): While there is a recognized freedom from compulsory fingerprinting, this right is subject to reasonable restrictions for public welfare. Fingerprints themselves are not inherently information about one's inner thoughts or beliefs (Supreme Court, December 15, 1995, Keishū 49-10-842 ).
3. Privacy as the Right to Self-Determination (自己決定権としての人格権 - Jiko Ketteiken to shite no Jinkakuken):
   This aspect of personality rights concerns the right of individuals to make decisions about their own private matters without undue interference from others. It protects the "dynamic safety" of personality development and individual autonomy. Examples include:
   • Medical Treatment Decisions: A competent adult patient has the right to make decisions about their own medical treatment, including the right to refuse treatment (e.g., a blood transfusion based on deeply held religious beliefs), provided they are adequately informed (Supreme Court, February 29, 2000, Minshu 54-2-582, the Jehovah's Witness Blood Transfusion Refusal Case ).
   • Workplace Sexual Harassment: Unwelcome sexual conduct by a superior in the workplace can infringe upon an employee's personality rights, including their sexual freedom and self-determination, if the conduct is deemed socially unacceptable considering all circumstances (Supreme Court, July 16, 1999, Rōdō Hanrei 767-14 ).
   • Religious Freedom/Environment: However, the Supreme Court has been cautious about recognizing a broad "right to a tranquil religious environment." In the Yasukuni Shrine Enshrinement Case (Supreme Court, Grand Bench, June 1, 1988, Minshu 42-5-277 ), it held that mere feelings of discomfort due to another's religious acts do not automatically give rise to a legally claimable interest for damages or injunction.

Right of Publicity (Paburishiti no Kenri パブリシティの権利)

Distinct from, but related to, personality rights is the right of publicity. This is the exclusive right of individuals, particularly celebrities and athletes, to commercially exploit the customer-attracting power inherent in their name, likeness, and other aspects of their persona. It is considered a type of personality right that protects the economic value associated with one's identity.

An infringement of the right of publicity occurs when a person's name or likeness is used without permission for purposes that are primarily aimed at exploiting its customer-attracting power, such as:

• Using the name/likeness on merchandise that is independently valued for the persona itself.
• Affixing the name/likeness to products to differentiate them in the market.
• Using the name/likeness directly in advertising for products or services.
  The Supreme Court clarified this in the Pink Lady Case (Supreme Court, February 2, 2012, Minshu 66-2-89 ). This right must be balanced against legitimate uses of a person's name or likeness in news reporting, commentary, or creative works where the primary purpose is not such commercial exploitation.

Remedies for Defamation and Invasion of Personality Rights/Privacy

Japanese law offers several remedies for these infringements:

1. Monetary Damages (損害賠償 - Songai Baishō):
   Victims can claim monetary damages under general tort principles (Civil Code Arts. 709, 710) to compensate for pecuniary losses (if any) and non-pecuniary losses, primarily mental suffering (isharyō).
2. Injunctive Relief (差止請求 - Sashitome Seikyū):
   Victims may seek a court order to stop ongoing infringements or prevent future harm. This can be based on "honor as a personality right" (jinkakuken to shite no meiyoken) or other infringed personality or privacy rights. This is particularly relevant for preventing the continued publication of defamatory material or the ongoing disclosure of private information.
   • Balancing with Freedom of Expression: Courts exercise caution when granting injunctive relief, especially prior restraints on publication, due to concerns about freedom of expression. For defamation of public officials or political candidates, pre-publication injunctions are exceptional and require clear proof that (i) the content is false or not published solely for the public benefit, AND (ii) the victim will suffer serious and irreparable harm (Hoppō Journal Case, Supreme Court, Grand Bench, June 11, 1986, Minshu 40-4-872 ). Similar high hurdles are suggested by lower courts for privacy-infringing publications (Shūkan Bunshun Case, Tokyo High Court, March 31, 2004, Hanrei Jihō 1865-12 ).
3. Measures to Restore Reputation (原状回復 - Genjō Kaifuku) (Civil Code Art. 723):
   In defamation cases, the court may, at the victim's request, order the defendant to take "appropriate measures to restore the victim's honor," either in lieu of or in addition to damages.
   • Apology Advertisements (謝罪広告 - Shazai Kōkoku): The Supreme Court has upheld court orders compelling the publication of apology advertisements, provided they are limited to a statement of the factual situation and an expression of apology, finding that this does not necessarily violate freedom of conscience if not unduly humiliating or coercive (Supreme Court, Grand Bench, July 4, 1956, Minshu 10-7-785 ). This remains a controversial issue among scholars, many of whom argue that retraction or correction advertisements are more appropriate and less intrusive on conscience.
   • Correction/Retraction Broadcasts: Victims do not have a private law right to demand correction or retraction broadcasts from broadcasters under Article 4(1) of the Broadcasting Act. This provision is interpreted as imposing a public law duty on broadcasters to self-regulate, not as creating a private right of action for victims (Supreme Court, November 25, 2004, Minshu 58-8-2326 ).
   • Right of Reply (反論権 - Hanronken): A general right to have a reply published in the same medium is typically not recognized as a remedy under Article 723. It is often seen as ineffective for restoring social reputation and potentially infringing on the publisher's freedom of expression (Supreme Court, April 24, 1987, Minshu 41-3-490 ).

Conclusion

The protection of reputation, personality rights, and privacy under Japanese law is a multifaceted area involving a delicate balance between individual dignity and fundamental freedoms such as expression and information. Victims of defamation or privacy invasion have access to remedies including monetary damages for their suffering and losses, injunctive relief to prevent further harm (though subject to high hurdles where freedom of expression is concerned), and, in defamation cases, court-ordered measures aimed at restoring their reputation. The law continues to evolve as society grapples with new challenges to these fundamental interests in the digital age.