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Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 1

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Mass Media and Privacy in Japan:
Current Issues, Recent Trends, and Future Challenges toward the "Ubiquitous Network Society"
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Itsuko YAMAGUCHI*
목 차

Ⅰ. Ⅱ. Ⅲ. Ⅳ. Ⅴ.

Inception of the Right of Privacy in Japan ········································· 156 Development toward Information Privacy ············································ 158 Balancing Test for Privacy Invasion? ·················································· 159 Trends in Mass Media Cases ······························································ 161 Challenges toward the "Ubiquitous Network Society" ·························· 163

Abstract
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While we have witnessed that the concept of privacy has developed dramatically in the last century, the legal scene concerning mass media and privacy in Japanis undergoing yet more dramatic changes during the last decade. The primary focus of my presentation today is to illustrate such changes through exploring relevant Japanese court decisions and legislations, and to clarify current issues and recent trends. I also would like to discuss how Japan copes with challenges posed by 5the Internet and so-called emerging "ubiquitous computing" technology. Future technologies will provide us the personalized, convenient, and comfortable environment without even noticing the presence of embedded computers. In this Paper, I argued, with the advent of such ubiquitous network environment, people’s sense or expectation of privacy in communications might change into something different from what we have in the current media environment.

* Professor, Univ. of Tokyo (교수, 동경대학교 학제정보학부)

주제어 l privacy-right(프라이버시권). 48 CAL. 2) Tokyo District Court (Sept. Brandeis. Prosser. William L. e. Yukio Mishima. The courts in Japan have approved privacy not only as a private right but also as a constitutional right since the 1960s. What is privacy in Japan? In explaining the concept of privacy. promulgated in 1946. 193 (1890). 383 (1960). L. The court said such legal guarantee is "indispensable to preserve individual dignity and to guarantee the pursuit of 1) See. privacy-information(개인정보). . This litigation" raised public awareness of privacy and prodded discussion on how to reconcile privacy and freedom of expression. First judicial recognition of the right of privacy came from the district court decision in the tort case in 1964. Inception of the Right of Privacy in Japan Let me begin with a basic question. Warren and Louis D. and it found the source of this aspect of privacy interests in the Constitution and statutes. 4 HARV. 1964) 385 HANREI JIHO 12. Mr. 28. Privacy. mass-media(매스미디어). The district court awarded the petitioner800. The current Japanese Constitution. In its reasoning.g. REV. PRIVACY NO KENRI [THE RIGHT OF PRIVACY] (1963). REV. the court defined privacy as "legal guarantee or right that private life shall not be unreasonably disclosed". The Right to Privacy..2) It was the case in which former minister of foreign affairs sued a famous novelist. See also MASAMI ITO. and publishers over descriptions of the petitioner’s private life in a novel titled "Utage no Ato (After the Banquet)". Japanese academics often start with referring early American materials1) and providing a classic definition of privacy as the right "to be let alone". doesn’t explicitly stipulate "privacy" in text. L. Samuel D. ubiquitous-network-society(유비쿼터스 네트워크 환경) Ⅰ.000 yen for damages.

5) Supreme Court (Dec.jp/foreign/government_e. It also held that it 3) This phrase implies that the right of privacy is grounded in Article 13 of the current Japanese Constitution. 24. Minpo. anyone shall have freedom not to be photographed appearance unreasonably without consent. though the Court didn’t use the exact word of "privacy". be the supreme consideration in legislation and in other governmental affairs. and the petitionerdid actually feel offended or anxiety by the disclosure.5) The appellant. Their right to life. That is. Article 709 is a general provision of tort law and it says that the "person who willfully or negligently infringed other person’s right or legally protected interest shall be liable for damages caused by such" infringement.html (last visited June 14. "All of the people shall be respected as individuals.kantei.go. Article 13 stipulates as follows. who joined student demonstration in the street and was charged with obstructing a police officer. privacy law. liberty. .4) The district court then set out the following three–step test to clarify privacy invasion eligible for legal remedy. Nihonkoku Kenpo. wouldn’t want the disclosure or. 2006). http://www.. was enacted in 1896.Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 3 happiness in today’s society with developed mass communications"3) It held that an injunction and damages for mental pain shall be granted against the invasion of privacy as a tort under Article 709 of Civil Code. under Article 13 of the Constitution. judging with a sensitiveness of people in general. 1969) 23 MINSHU 1625. would suffer psychological burden or anxiety by the disclosure. 4) Civil Code." The English translation is available at. The definition and test above serve as an important first step for later development of Japanese Supreme Court decision in 1969 recognized privacy to be protected under the Constitution for the first time. and the pursuit of happiness shall. and (c) the matter which has not yet been known to the general public. to the extent that it does not interfere with the public welfare. (b) the matter of which anybody in the petitioner’s position. claimed unconstitutionality of the police conduct to have taken the appellant’s photograph without consent or a court warrant. the content disclosed is (a) the matter which is likely tobe accepted as the fact of private life or the probable fact of private life. in other words." "The Court held that.

the national government enacted "Law on Protection of Computer Processed Personal 6) Nevertheless. though its majority opinion never used the word "privacy". 87 HOGAKU RONSO 1 (1970). the legal as well as social implications of computer and information technology have been discussed. see also Koji Sato. Following the OECD guidelines in 1980. Privacy no Kenri (sono Kohoteki Sokumen) no Kenporonteki Kosatsu (1)-(2) [Constitutional Study on the Right of Privacy (in Aspect of Public Law) (1)-(2)].8) The boundary between this new type of data privacy or information privacy and traditional types of privacy to be protected against intrusion upon seclusion or publicity given to private life is blurred. Ⅱ. PRIVACY AND FREEDOM (1967). 8) See e. 86 HOGAKU RONSO 1. Since then. 14. Local municipalities went ahead to enact ordinances to protect personal information in dealing with computer processed data in the 1970s. the Supreme Court concluded that the police conduct in this case was legitimate.g. the progress was rather slow in Japan. Privacy concern triggered by computerized data bank was among discussed topics. ALAN WESTIN.7) In this case the Court affirmed to find negligence in the local government office’s disclosure of the prior crime record of the appellee to an attorney. It would need to undertake an elaborated and delicate work to clarify their relationship. Development toward Information Privacy The 1960s was roughly the time when Japan started to foresee the advent of the "Information Society". but it’s probably adequate to say that their targeted interests are partly overlapped: at least some of data privacy protection leads to privacy protection in the traditional sense.would be unconstitutional under Article 13 and inadmissible for the police to take a photograph of an individual without a legitimate reason.. The Court held that the disclosure was "illegal use of the public power". 1981) 35 MINSHU 620. About data privacy legislation. 7) Supreme Court (Apr.6) Another Supreme Court decision in 1981 is generally understood to recognize again privacy as a constitutional right. . it is generally explained that the concept of privacy has developed to connote a broader meaning of the right "to control personal information" . Under such so-called "infomatization" of society.

and it came into effect fully from April of 2005. http://www. The Court admitted that personal information on the name list was "simple information in order to identity individuals" and in that sense there was not significant need to be concealed.cas. more comprehensive data privacy legislation to cover the private sector became high on the political agenda. etc. 2003) 57 MINSHU 973..go. However. who signed to attend a symposium lecture sponsored by the university.Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 5 Information possessed by Administrative Organizations (Law No.jp/jp/seisaku/hourei/data2. and their expectation should be protected. The law applied only to the public sector. The law broadly protects personal information which can identify a specific living individual.10) In this case a university submitted a name list of students. As a result of extensive debates. 10) Supreme Court (Sept. Its unofficial English translation is available at. 9) It was enacted with four other related data protection laws.html (last visited June 14. the "Protection of Personal Information Law (Law No. in the context of litigations involving existing mass media. Still. it was natural for students to think that they wouldn’t want such information to be unreasonably disclosed to others. This law functions as a basic law of related data protection laws. Ⅲ. name. The broadening of privacy concept to encompass data privacy could be clearly seen also in Japanese Supreme Court decision in 2003. Balancing Test for Privacy Invasion? Today it is obvious that the right of privacy has been recognized and its scope is getting broadened to include data protection in Japan. . traditional types of privacy issues remain important. Students brought action against the university for damages. Especially after the mid-1990s when the Internet use was getting spread in society and the EU data protection directive was adopted. claiming that the disclosure to the police without their consent would constitute the tort of privacy invasion. to the police for security reason. The Court held that such personal information shall be "legally protected as information concerning the appellants’ privacy". 2006). not limited to "sensitive"information. the Court said. That list contained information of university student number. 57 of 2003)"9) was enacted. address and phone number. 12. 95 of 1988)".

That might be partly because existing defamation law could work to deal with a certain aspect of privacy concerns. Indeed. Article 710 and 723 of Minpo[Civil Code]. including those against mass media. it’s hard to know the exact statistics because not all of court decisions will be published on widely accessible reporters in Japan. Article 230 and 230-2 of Keiho[Penal Code]. 12) However. Generally speaking. However. next question to be asked here is what constitutes the tort of privacy invasion. including those of defamation and privac y.12) Based on such recent decisions. had been relatively small. when immunity is given for privacy invasion. it might be because litigation is not a familiar course of actions to resolve civil disputes in Japan. One of such changes is the increase in the number of cases.Therefore. or in other words. there are remarkable changes in mass media cases over the last decade. it could be summarized that the courts often employ the method of balancing interests in reasoning. For general trends in recent mass media cases. defamation is explicitly stipulated in statutes such as Civil Code and Penal Code. privacy claim in tort cases often came together with other claims like defamation.11) Under such statutory provisions and judicially established rules on civil and criminal immunity. first of all.g. The number of privacy litigations in Japan. the truth defense to defamation claim is allowed only when the publication is about "the fact of public concerns" and the purpose of the publication is "solely for the public interest". Still. as there is not enough accumulation of precedents. Unlike privacy. It is fair to say that such criteria have not been fully developed yet. it’s possible for the complainant whose unknown fact of private life has been disclosed would go for defamation claim. in order to decide whether or not the publication 11) See e. see infra note 16 and accompanying text. .. for example. litigations of privacy invasion are much less than those of defamation. Therefore.

2003) 57 MINSHU 229. Ⅳ. the Supreme Court’s 2003 decision explicated this point. 23. On remand. based on the facts of this case.14) Nevertheless. For instance. purpose and meaning of the article. the immunity must be considered individually and concretely for each defamation and privacy invasion. the necessity to publish such information in the article. even if the article included defamatory and privacy invasive contents. 15) The Supreme Court decision of the name list case above found that. Such difference in tests might reflect yet to be clarified differences in traditional types of privacy invasion by mass media and new type of privacy invasion in handling personal data. Trends in Mass Media Cases 13) Supreme Court (Mar.Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 7 constitutes the tort of privacy invasion. it might be too early to say that balancing is the established test for all types of privacy invasion cases. etc. 14. the Court explained as follows. The Court emphasized that.000 yen to each student for damages (Mar. it wasn’t difficult for the university to ask for students’ prior consent. the Tokyo high court granted 5. and then if such interest overrides such reason . The publication constitutes the tort. the scope of distribution of the appellee’s privacy information and the degree of injurythe appellee suffered by the publication. About privacy invasion.13) It was the case concerning a weekly magazine article on juvenile delinquency. when "legal interest not to be published such fact" and "the reason to publish it" are balanced. social situation at the time of the publication. . The Court thus concluded that the disclosure "intruded upon reasonable expectation about proper management of information concerning privacy" and constituted the tort of privacy invasion. the kind of crime committed. It is because the majority opinion of the Supreme Court’s 2003 decision concerning the university name list mentioned above employed a "reasonable expectation" test15) rather than a balancing test. 14) Then the Court listed multiple factors to be considered in such balancing in this case as follows: the appellee’s age and social position at the time of the publication. 2004) 1855 HANREI JIHO 104.

633 SHINBUN KENKYU 67 (2004).g. 1209 JURISTO 63 (2001). Tokushu: Songaibaishoseikyusosho ni okeru Songaigaku no Santei [Symposium: Calculation of the Amount of Damages in Litigations for Damages]. eds.16) First is about the amount of damages to be awarded especially in defamation cases.. and thus the reasoning of the court opinions tends to be more detailed and elaborated than before. Mass Media ni yoru Meiyokisonsosho no Kenkyu to Teigen [Study and Proposal on Litigations in Defamation by Mass Media] . one more trend worth mentioning is increased availability of injunctive relief. In the last several years. 655 SHINBUN KENKYU 55 (2006). Third. Shigenori Matsui. Henbo suru Meiyokisonho to Hyogen no Jiyu [Transforming Defamation Law and Freedom ofExpression]. there were active movements and proposals to raise the amount. Article 21 of Japanese Constitution explicitly prohibits "censorship".. 2006). No censorship shall be maintained.17) Those resulted in boosting the average amount of damages granted in overall litigations involving mass media including privacy cases. Tokyo Chiho Saibansho Songaibaishososho Kenkyukai [Tokyo District Court’s Study Group on Litigations for Damages]. The recent development of tests for privacy invasion above might be a product of such trends. Media Hanrei 100sen [100 Selected Cases on Media]. HYOGEN NO JIYU TO PRIVACY[FREEDOM OF EXPESSION AND PRIVACY](Yasuhiko Tajima et al. See also brief annual reviews ofmass media cases from 2002 to 2005 by Itsuko Yamaguchi. Special Issue of JURISTO. and there is an established rule against prior restraint. The amount had been long criticized as too low since the 1980s. 18) Article 21 of the Constitution stipulates as follows.. 645 SHINBUN KENKYU 44 (2005). 2005). the Supreme 16) See e. nor shall the secrecy of any means of communication be violated. No.Besides the increase in the number of litigations. "Freedom of assembly and association as well as speech. 1222 JURISTO 77 (2002). Second." . 179 (Masao Horibe & Yasuo Hasebe eds. That probably contributes to the clarification of related legal doctrines and criteria.g. press and all other forms of expression are guaranteed. there are some general trends of mass media cases during the last decade. issues disputed have become diversified and complicated. 622 SHINBUN KENKYU 46 (2003). 1970 HANREI TAIMUZU 4 (2001)..18) In the context of defamation. 17) See e.

31. could be admitted only exceptionally under a strict rule. including privacy invasion.. whose mother is former minister of foreign affairs and grandfather was influential former prime minister.19) During the last decade. 22) See decisions of Tokyo District Court (Mar. The Tokyo high court vacated the injunction order in later objection procedures. the article is not about "the matter of public concerns". . 19. and Tokyo District Court (Nov. 20) Among them. Amagasaki Branch (Feb. 21) Supreme Court (Sept.21) Yet more controversial litigation occurred in 2004. See e. 24. in which the district court issued a preliminary injunction against the publication of an article in a popular weekly magazine with a large nationwide circulation. it is apparent that the purpose of the article is not "solely for the public interest". 23) Other two prongs are as follows. Nevertheless. 1998) 1686 HANREI JIHO 68.23) Ⅴ. 2004) 1865 HANREI JIHO 12. Challenges toward the "Ubiquitous Network Society" In many countries including Japan. there came several lower court decisions to place an injunction on the publication of book on the grounds of infringements. there was a series of decisions to enjoin the publication of so-called celebrity fans "chasing book"containing detailed residence information of celebrities. 1906 HANREI JIHO 222 [562 HANREI HYORON 44] (2005). 1986) 40 MINSHU 872. Second. it is probably no exaggeration to say that the 19) Supreme Court (June 11. See also its case review by Itsuko Yamaguchi. on the ground of infringement of a certain kind of personal rights.20) The discussions spurred when the Supreme Court affirmed in 2002 to enjoin a novel entitled "Ishi ni oyogu Sakana (A Fish naiant in Stone)"from being published in the form of book for the reasons of defamation. First. privacy invasion. for example.22) The article reported about the divorce of a daughter of a prominent family. 1997) 1604 HANREI JIHO 127. the high court found that privacy invasion in this case had not met the last prong of that criterion: the petitioner "is likely to suffer significant and eminent irreparable damage" by the publication. 12. The high court affirmed to apply a three-prong injunction criterion for privacy invasion set out by the district court.g.Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 9 Court confirmed in 1986 that judicial injunction against the publication of expressive materials. 2004) and Tokyo High Court (Mar. decisions of Kobe District Court. 30. 2002) 1802 HANREI JIHO 60. etc.

2001) 1786 HANREI JIHO 80. and the computer network service provider liable in 1997. 27) Tokyo High Court (Sept. but it also enabled distribution of illegal and harmful materials on an unprecedented scale.000 yen in damages. Japan faced difficult questions posed by digital network communications. 25) For details of my argument here. values and ways of life to the Japanese public. Under the traditional understanding of privacy in communications.. 1997) 1610 HANREI JIHO 22.growing presence of the Internet is one of the biggest changes happened in the media environment over the last decade. the high court affirmed in part and reversed in part. Those sometimes made it difficult to pursue a legal action against any kind of wrongdoing in cyberspace. In dealing with illegal online contents such as obscene and defamatory materials.24) The scope of the secrecy requirement under Article 21 and relative statutory provisions has generally been understood to include not only the content but also information of the sender and the recipient of communication. and the uncertain liability of service providers.25) Looking back the mid-1990. ideas. Japanese government at that time took a cautious approach. Article 21 of the Constitution guarantees "the secrecy of any means of communication". Let’s briefly look at how Japan responded to such challenges in the last decade. 38 STAN. J. holding only the sender liable for 500. INT’L LAW 109 (2002). . 26) Tokyo District Court (May 26. the system operator of bulletin board. Rulemaking for cyberspace in Japan gradually took place in its courts through the application of existing laws to resolve individual cases.26) In 2001. the Internet brought the benefits of diversity of information. 5. The district court held the sender of defamatory messages. Japan’s first online defamation suit was filed in 1994. Especially in Japan.27) This litigation showed that under existing laws there remained unsettled uncertainties in how to resolve issues raised by unique 24) See supra note 18. see e. the high degree of anonymity. there was a need to reconsider the traditional concept of privacy in communications in order to deal with online legal issues. Cyberspace communications have unique characteristics such as the inherent tendency to go beyond international borders.g. Beyond de facto Freedom: Digital Transformation of Free Speech Theory in Japan. Japan preferred to avoid immediate legislations in order not to risk stifling the development of digital communications. Itsuko Yamaguchi.

in which personal customer data were leaked by Win-MX file-sharing onto the Internet. copyright infringement. 2004) 1152 HANEI TAIMUZU 131. Japanese government has started actively to take a series of legislative measures since the late 1990s. 30) See e.. Under the law. Could an alleged victim in the case of peer-to-peer file sharing over the Internet invoke disclosure claim under this law against a mere conduit access service provider who passed through an infringing material? The high court’s 2004 decision on this issue. including defamation. Itsuko Yamaguchi.28) In another case. CULTURE & SOCIETY 529 (2006). One of such legislations is so-called provider liability law: "Law on the Limitation of Specified Telecommunications Service Provider's Liability for Damages and the Disclosure of Information about the Senders of Communications (Law No. The law is made to be comprehensive enough to cover infringement of any right. AND LAWS GO BEYOND. communications terminals get miniaturized. Buist).29) Such wide reaching application of the law may have a significant effect on the level of anonymity which has characterized privacy in cyberspace communications of the last decade. whose right has been infringed by a certain type of network communications. 31. further issue was presented about thescope of this law’s application. 2003) 1817 HANREI JIHO 84. the right to demand service providers to disclose identification information about its sender. people’s sense of cyber-"space" in the early days of Internet growth seems to be changing gradually with latest developments in information technologies. The law also gives an alleged victim.g. the district court in 2003 ordered the operator of bulletin board on the Internet to disclose information of the sender who posted defamatory messages. . the broadband connections by wireless and optical fiber become more affordable. Itsuko Yamaguchi (Translated by David C. 2005). vol. Cyberlaw. 137 of 2001)". TOKERU SAKAI 4 MEDIA TO SEIDO [BORDERS GET FUZED. 23 THEORY.Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 11 characteristics of cyberspace communications. 29) Tokyo High Court (May 26. 4: MEDIA AND SYSTEM] (Daniel Foote & Yasuo Hasebe eds. etc. Interestingly. enacted to clarify the obligations of service providers.. affirmed to order the passing-through provider to disclose information concerning the sender. Ubiquitous Jidai ni okeru "Cyberho" Gainen no Tenkai [Development of ‘Cyberlaw’ Concept in the Ubiquitous Age].30) Today. in KOERU HO. and business demand for 28) Tokyo District Court (Mar. privacy invasion. for instance.

(Translated by David C. Beyond de facto Freedom: Digital Transformation of Free Speech Theory in Japan. With the advent of such ubiquitous network environment. 2006. INT’L LAW. people’s sense or expectation of privacy in communications might change into something different from what we have in the current media environment. . Buist). Future technologies might be able to provide us the personalized. rather than people using computers go into cyberspace. 2002. See also "u-Japan Policy: Working Toward Realizing the Ubiquitous Network Society by 2010" by the Ministry of Internal Affairs and Communications. These speculations of future surely require careful evaluation. convenient. and comfortable environment without even noticing the presence of embedded computers. 2006). available at http://www. Media Hanrei 100sen [100 Selected Cases on Media]. CULTURE & SOCIETY.html (last visited June 14. 1970. Special Issue of JURISTO. J.jp/menu_02/ict/u-japan_en/index2. it comes to feel like computers enter invisibly and pervasively into people’s lives. (Masao Horibe & Yasuo Hasebe eds.go. Japanese ministries published "Denshitagu ni kansuru Privacy Hogo no Guideline [Privacy Protection Guideline for ElectronicTags]"on June 8. . Indeed. Ubiquitous Jidai ni okeru "Cyberho" Gainen no Tenkai 31) Concerning RFID (Radio Frequency Identification) tags.soumu. it would be a part of the mission of the academic and research community to envision the coming "Ubiquitous Network Society" and to discuss its social and legal implications in this first decade of the 21st century.html (last visited June 14. Privacy no Kenri (sono Kohoteki Sokumen) no Kenporonteki Kosatsu (1)-(2) [Constitutional Study on the Right of Privacy (in Aspect of Public Law) (1)-(2)]. available at http://www.. 2004. 2006). 2005. 23 THEORY. 38 STAN.31) Under such environmental changes.RFID and so-called "ubiquitous computing"is sharply rising.go.jp/s-news/2004/040608_4. Reference Koji Sato.soumu. Cyberlaw. . Itsuko Yamaguchi.

vol. 4: MEDIA AND SYSTEM]. Japanese ministries. "Denshitagu ni kansuru Privacy Hogo no Guideline [Privacy Protection Guideline for ElectronicTags]"on June 8.Itsuko YAMAGUCHI : Mass Media and Privacy in Japan 13 [Development of ‘Cyberlaw’ Concept in the Ubiquitous Age]. Daniel Foote & Yasuo Hasebe eds. 2004. in KOERU HO.. TOKERU SAKAI 4 MEDIA TO SEIDO [BORDERS GET FUZED. . 2005. AND LAWS GO BEYOND.

요 약 l “우리가 지난 세기동안 프라이버시의 개념이 극적으로 변화되어왔음을 목격하였지 만 일본에서의 매스미디어와 프라이버시에 대한 법률문제는 최근 10년동안 더욱 극 적인 변화를 겪고 있다.” 미래의 기술은 임베드된 컴퓨터의 존재를 인식하지도 않고서 우리들에 게 보다 더 개인화되고 편리하며 안락한 환경을 제공할 것이다. 내 논문의 주된 초점은 관련 일본 법원의 판례와 법률을 분석 함으로써 그런 변화를 조망한 뒤 현재의 이슈와 경향을 분명하게 하는 것이다. 또한 일본이 어떻게 인터넷과 부상하는 ‘유비쿼터스 컴퓨터 기술’을 극복하고 있는가를 논 하고자 한다. 이 논문에서 본 저자 는 유비쿼터스 네트워크 환경이 도래함에 따라서 커뮤니케이션에서의 프라이버시에 대하여 사람들이 느끼는 것이나 기대하는 것이 현재의 미디어 환경에서와는 다른 것 으로 변화될 수 있을 것이라고 주장하였다. .