By Gordon Endow on March 7, 2017
In late January 2017, the Supreme Court of Japan held that a man who had been convicted of breaking child prostitution and pornography laws had no right to require Google to remove his name and address from Google search results. The decision reversed the Saitama District Court’s ruling of December 2015 that the man could require Google to delete news reports of his arrest and conviction three years earlier.
The district court had held that the man had a “right to be forgotten,” the first such ruling in Japan. Presiding Judge Hisaki Kobayashi reportedly stated that, depending on the nature of the crime, after a certain period of time has elapsed individuals should be able to undergo rehabilitation with a clean online slate.
The Japanese Supreme Court, however, disagreed. It held that the public’s right to know outweighed the man’s right to privacy given the serious nature of his crimes. According to the court’s website, the deletion of references in search engine results to such charges can be required only where the value of privacy protection clearly exceeds or outweighs that of information disclosure. According to the Kyodo news agency, at least Supreme Court Justice Kiyoko Okabe found that the scales tipped more heavily to disclosure because child prostitution is prohibited under the penal code and is subject to strong social condemnation.
The Supreme Court of Japan, according to its website report on the case, said that in determining whether search engine results should be deleted, relevant factors include the degree of damage the information may cause to the person’s privacy interests, how broadly specific searches can be carried out, and the social standing of the individual in question. Website operators would need to perform a case-by-case analysis but these factors alone would not seem to give them much guidance.
The Japanese high court did not mention a “right to be forgotten.” Such a principle has been publicized within the past few years in the European Union and some other jurisdictions. The term “right to be forgotten” became widely known following a May 2014 ruling by the European Court of Justice involving a Spanish man who demanded his past debt record be removed from the Internet.
More nuanced discussions of the doctrine sometimes distinguish between a “right” of an individual to stop the circulation of embarrassing personal facts, statements, or graphics that the person himself or herself originally published on the internet, versus the right to stop the circulation of information placed there by unrelated third parties, such as companies and government agencies, for a broader public purpose. In the first case, the person may have been under age or have acted precipitously, and could be considered the “owner” of the information. In the second case, those circumstances would seem to be missing.
Neither the U.S. nor Japanese constitutions contain an express right of privacy. For example, the Japanese 2003 Personal Information Protection Law states what businesses should do in handling personal information but does not specify an individual’s corresponding right to privacy. In contrast, the U.S. and Japan both expressly protect a right to freedom of speech. Article 21 of the Japanese Constitution expressly provides that the freedom of speech, press and all other forms of expression are guaranteed, and that no censorship shall be maintained.
The case in Japan may have been the first for that country’s high court on this issue, but there will likely be other cases, both there and elsewhere. In political systems, there is generally an inverse relationship between the widespread availability of information and the government’s ability to rule coercively. In other words, the more that information can be controlled and limited, the more coercive can be the government. North Korea is a prime example. The balance between a right to be forgotten and the right to free speech may develop differently in countries that are based on democratic principles than in other countries.