​Japan Supreme Court leans on side of caution in ‘right to be forgotten,’ leaving issue for future debate

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9 February 2017. By Toko Sekiguchi.

The decision by Japan's Supreme Court in a ruling last week not to address squarely the issue of the "right to be forgotten" likely reflects the court's desire to buy time to prepare the public, the legal community and the judiciary for a more comprehensive discussion on the issue in the future.

An expert close to the case, Hiroshi Miyashita, said that the Jan. 31 decision could be interpreted as a careful maneuver by the country's highest court to prevent itself from rushing to a premature conclusion on a globally controversial topic that has, in Japan, yet to receive adequate vetting by either the lower courts or the public.

The Saitama District Court first recognized the right to be forgotten in 2015, in a case involving a man appealing to have press reports from 2011 about his arrest and fine for violating child prostitution and pornography laws from Google's search engine. The Tokyo High Court rejected the decision in 2016, and last week the Supreme Court dismissed his appeal, remaining mum on what could have become a new right to privacy in Japan.

Miyashita, an associate professor at Chuo University, pointed to how the Supreme Court applied practically the exact same six measures in deciding whether privacy trumps the public good in the Google case as it did to a 2003 privacy case over a magazine's disclosure of identifiable information of a minor involved in a violent crime.

One major difference, legal experts say, is that the Supreme Court acknowledged that a search engine is not only an "act of expression" but also "plays a large role as the foundation of information distribution on the Internet." Perhaps for this reason, it raised the bar for privacy violations by stating that there needs to be a "clear case" in which privacy concerns override the public good in order to delete search results.

Tomohiro Kanda, the representative of the appellant, told MLex that while the Supreme Court ruled against his client last week, holding search engines to a higher privacy standard may be advantageous to those suffering from defamation.

"If we can prove that the information is false, then there exists no public good," Kanda told MLex. "But it does make the line less clear for those with past criminal offenses. If five years isn't long enough to diminish the public-good aspect of the information , is 10? Twenty? Where between five and 100 years?"

Masahiro Sogabe, a constitutional law professor at Kyoto University specializing in information technology, noted that the decision mostly upheld the conventional framework of privacy versus freedom of expression. "By adding the phrase 'clear case,' it set the brakes on allowing deletion of results too readily."

Some Japanese privacy experts see no need to introduce the right to be forgotten in Japan, maintaining that the existing Japanese legal structure for determining invasion of privacy — whether or not the information is personal, publicly known, and generally considered emotionally damaging — is adequate without creating a new right.

Kanda says questioning these outdated privacy criteria, set by the court in 1964, by asking whether all searchable information on the Internet should be considered public knowledge, may be one possible starting point to argue for the right to be forgotten in Japan.

But he warns: "The phrase is catchy, which is why it likely received the public attention it did. But it's hard to say if the current privacy debate in Japan provides fertile ground for a discussion about the right to be forgotten," Kanda said.

The debate between privacy and the public nature of information in the age of online platforms includes matters such as jurisdiction, which even privacy advocates are struggling with.

As seen in the vastly different regional judgments on the topic — with the US favoring more freedom while the EU views privacy as an inalienable human right — striking the right balance between privacy and freedom of expression and how to enforce it often touches upon what societies hold dearest. Allowing courts to extend national laws beyond their borders raises complex questions about Internet jurisprudence, as illustrated by the example of Google.

But considering the ease with which users can manipulate IP addresses to switch from one regional domain to another, placing country-based limits on search results operated by global online platforms essentially invalidates effective enforcement.

"At the end of a blanket 'right to be forgotten' system of deletion may be censorship," Miyashita says, such as the possibility of politicians taking advantage of the rule to clean up their past. "This is the core of what supports democracy."

For now, legal experts interpret Japan's Supreme Court decision as leaning on the side of caution, as it waits for the discussion to mature in the legal community and gain momentum in the public.

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