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Cyberlaw
Itsuko Yamaguchi
Theory Culture Society 2006; 23; 529
DOI: 10.1177/0263276406023002111

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27_mutns-in-citizenship_064831 10/5/06
Problematizing Global Knowledge – Citizenship/The Political/Global Sovereignty 529
Cyberlaw
Itsuko Yamaguchi
(Translated by David C. Buist)
Keywords cyberspace, information, Internet,
Japan, ubiquitous network
Cyberlaw and the Japanese Concept of
‘Information Law’
The terms ‘cyberlaw’, ‘cyberspace law’, ‘Internet
law’ or ‘information technology (IT) law’ have
gained considerable currency in recent years. To
what extent do any of these terms denote a
distinctive and consistent field of legal investi-
gation? The concept of ‘information law’ has
existed in Japan since the 1960s, but its definition
depends greatly on the varied interpretations of
the key concept of ‘information’. Given the inevi-
table overlap between the concept of ‘cyberlaw’
and the existing category of ‘information law’, it
would seem instructive to begin by considering
how they might relate to each other. One charac-
teristic of ‘information law’ is that it has been
formed as a category largely according to practical
criteria rather than having any clear foundation in
legal theory. It came about in response to pressing
social concerns about the legal implications of
information technology. The development and
adoption of new information technologies raised
legal issues that crosscut the existing compartmen-
talization of legal theory. These issues fall outside
the scope of the typical problems envisaged by
existing legal institutions. Attempts to formally
define ‘information law’ are thus inevitably broad
and flexible in interpretation, as is illustrated by
the following influential definition: ‘law pertaining
to the production, distribution and consumption
of information’ (Hamada, 2002: 473).
‘Cyberlaw’ inherits from ‘information law’ the
characteristic of being practically oriented rather
than being defined in terms of legal theory. The
Internet and virtual sphere of ‘cyberspace’ does
provide some basis for its overall conceptualiza-
tion. Nevertheless, the legal problems raised by
cyberspace still transect the traditional divisions
drawn between different fields of law, such as libel
law, obscenity regulations, privacy and personal
data protection law, copyright law, and the laws
governing electronic commercial transactions. All
these areas are simultaneously brought into play
when we consider the issues frequently raised by
cyberspace communications, such as the inherent
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10:26 am Page 529
tendency to cross international borders, the high
degree of anonymity, and the uncertain liabilities
of Internet Service Providers (ISPs). An additional
complication is that the Internet is itself inherently
changeable in character. The basic structure or
‘architecture’ of the Internet is subject to change
through the way in which the technological
‘means’ of software and hardware are arranged in
order to bring about the realization of specific
desired ‘ends’ – whether these be values, ideals or
functions. Broadcast media in the past had severe
inherent technological and physical limitations
arising from the finitude and scarcity of useable
electro-magnetic frequencies. The existing legal
and regulatory system of broadcast licensing and
content regulation grew up in accordance with
those conditions. However, the Internet is entirely
different in this respect. It has no fixed, unchange-
able or easily defined character. Cyberlaw will
therefore be highly susceptible to periodic changes
in technology, social norms, social consciousness,
and socioeconomic conditions.
The Digital Impact on Free Speech Theory
in Japan
In order to give a more concrete picture of the
social changes brought about by cyberspace, I will
now focus on the issue of freedom of speech and
expression in Japan. During the early stages of
rapidly expanding Internet usage in the mid-
1990s, the Japanese government took a very
cautious approach toward the enactment of legal
measures to counteract emerging problems such as
defamation on the Internet and cyberporn. This
caution was particularly marked when issues of
free speech and privacy were concerned. This is in
contrast to the United States, which was among
the first to adopt legislative measures with the
Communications Decency Act of 1996. However,
towards the end of the decade, Japan began to be
more proactive on the legal front, even when this
impinged upon rights of free expression and data
privacy. This is seen, for example, in the ‘Law for
the Partial Amendment of the Law Relating to the
Regulation of Amusement Businesses and the
Improvement of Services’ (Law No. 55 of 1998),
which extended conventional administrative
control over sex-related amusement businesses to
cyberporn. In 2001, a further law was enacted
as the ‘Law on the Limitation of Specified
27_mutns-in-citizenship_064831 10/5/06
530 Theory, Culture & Society 23(2–3)
Telecommunications Service Provider’s Liability
for Damages and the Disclosure of Information
about the Senders of Electronic Communications’
(Law No. 137 of 2001). This law sets specific
conditions for the indemnity of Internet Service
Providers, and also provides for a legal right to
demand and receive the disclosure of information
on the senders of communications.
These recent changes in the institutional
conditions relating to freedom of speech and
expression are likely to have a major impact on
how we study or ‘theorize’ this freedom
(Yamaguchi, 2002). In postwar Japanese constitu-
tional theory, the importance of free speech was
so taken for granted that there seemed to be no
need for any direct discussion about its intrinsic
worth. The demand for tougher constitutional
guarantees for the freedom of expression has
always been backed up by an intense distrust of
government power on issues relating to public
expression, and any movement toward regulation
in this area has been met by a profound mood of
‘scepticism’ and loud protests. There has also
been lively proceduralist discussion over the finer
points of legal interpretation and judicial criteria
with the aim of counteracting any movement by
courts to stretch the interpretation of existing
laws or the constitution in such a way as to limit
people’s rights to free expression. However, atti-
tudes have since begun to shift somewhat with
public recognition of the inevitability of stringent
regulatory measures to curb the harm that can
arise from free expression in the new environment
of almost instantaneous worldwide communi-
cations. Furthermore, in the context of present
government policy to promote the further
development and use of information technology,
the need for regulation against illegal contents is
also being argued from an economic point of view.
With the move towards greater legislative inter-
ventionism in this field, the current prevailing
view is that the existing laissez-faire policy with
respect to public expression based on the mistrust
of government control cannot function so well in
the new technological and social environment.
The challenge is now to find ways of balancing the
competing interests of free expression on the
Internet and people’s rights to public honour and
privacy, as well as providing for the wholesome
rearing of children and youth, and fulfilling
people’s expectations that the Internet will be a
secure and trustworthy medium for commerce.
To this end, it is necessary to think more deeply
about the ‘theory’, ‘philosophy’, ‘rationale’ or
‘why-questions’ of free speech. These are matters
to which Japanese constitutional theory has given
relatively scant attention in the past. The prin-
ciple task now confronting us is to seek philo-
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10:26 am Page 530
sophical justifications for the constitutional
protection of free expression and explain its
underlying virtues.
Cyberlaw in the ‘Ubiquitous Network
Society’: What Lessons Might American
Cyberlaw Have for Japan?
The most recent trends seem to indicate a gradual
loss of the distinctive mood and spirit that
surrounded cyber-‘space’ in the early days of
Internet growth. The latest technological develop-
ments – such as the widening use of broadband and
wireless Internet connections, the miniaturization
of communications terminals, and ubiquitous
computing – suggest a fundamental change in the
way people relate to the Internet. Instead of
people using computers to enter into cyberspace,
it is now more the case that computers enter invis-
ibly into people’s lives. Computers are becoming
a ubiquitous part of daily life. Therefore, the very
concept of cyber-‘space’ on which existing
cyberlaw is premised is itself changing.
Nevertheless, the cautious approach adopted in
existing law toward the regulation of cyberspace,
as exhibited especially in American cyberlaw since
the 1990s (Lessig, 1995, 1999), remains of funda-
mental importance in Japan, even more so now as
we seek to clarify the legal challenges facing us in
the rapidly changing technological environment of
the present day. In particular, we need to take a
serious look at alternative types of regulatory
measure, rather than relying solely, or even at all,
on traditional legal instruments based on the
‘command-and-control’ model. This is necessary in
consideration of the distinctively complex and
changeable ‘architecture’ of digital networks. Such
alternative means of regulation might include, for
example, self-regulatory systems among private
corporations, encrypting and identification tech-
nologies, control systems employing rating and
filtering techniques, and educational measures
aimed at promoting information literacy and
awareness of information ethics. Furthermore, in
view of the fact that controversies relating to the
Internet cross-cut multiple fields of law, there is a
necessity for widespread and constant monitoring
to see whether the numerous measures in place are
interacting in such a way as to maintain a proper
balance between freedom and regulation.
These are certainly no easy tasks, which is
precisely why we must first give some thought to
the matter I raised at the beginning – how to
theorize the concept of ‘cyberlaw’. In light of our
existing experience of trying to theorize the
concept of ‘information law’ in Japan, there are
two points that particularly need attention here.
First, cyberlaw provides the occasion for reflection
27_mutns-in-citizenship_064831 10/5/06
Problematizing Global Knowledge – Citizenship/The Political/Global Sovereignty 531
on fundamental questions, such as which basic
evaluative norms need to be observed when
dealing with specific individual case issues, and
why such principles have come to be enshrined in
law in the first place. Making explicit the norma-
tive values and principles that law seeks to actual-
ize is absolutely essential if we are not to be
overtaken by the factual changes which are
constantly occurring as a result of the intrinsically
changeable nature of digital networks. In other
words, attempting a theoretical analysis from the
perspective of cyberlaw means returning to the
fundamental values and norms underlying the
various areas of law that pertain to digital
communications. It means investigating at a more
basic level what values free expression and the
flow of information on the Internet fulfil for indi-
viduals and society. It also involves consideration
of how the harmful effects of these activities can
be controlled. The second point is closely related
to the first. That is to say that cyberlaw can throw
new light on the problems inherent in existing laws
by providing us an opportunity to reexamine them
in relation to contemporary issues. It allows us to
think again about whether the present legal
framework is ‘optimal’ from the point of view of
realizing the basic principles that are supposed to
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10:26 am Page 531
be its underlying goal. In other words, the new
perspective provided by cyberlaw not only illumi-
nates fundamental principles, but also reveals the
deficiencies of existing law.
References
Hamada, J. (2002) ‘Jōhō Hō’ [Information Law],
in Takashi Kitagawa et al. (eds) Jōhōgaku Jiten
[Encyclopedia of Media and Information
Studies]. Tokyo: Koubundou.
Lessig, L. (1995) ‘The Path of Cyberlaw’, Yale
Law Journal 104: 1743.
Lessig, L. (1999) ‘The Law of the Horse: What
Cyberlaw Might Teach’, Harvard Law Review
113: 501.
Yamaguchi, I. (2002) ‘Beyond de facto Freedom:
Digital Transformation of Free Speech Theory
in Japan’, Stanford Journal of International
Law 38: 109.
Itsuko Yamaguchi has been Associate Professor of
Information Law and Policy, Interfaculty Initiative
in Information Studies at the Graduate School
of Interdisciplinary Information Studies, Uni-
versity of Tokyo, since 2000, and was Visiting
Researcher at Harvard Law School in 1999–2000.