Removal of Arrest Articles and the 'Right to be Forgotten' and 'Interest Not to Hinder Rehabilitation'

Your private information, which you don’t want others to know, can be found through an internet search. In particular, your arrest record or criminal history can become known to those around you. This can lead to significant disadvantages.

The “Right to be Forgotten,” which has been adopted in the EU, has been frequently discussed in the news and newspapers. But can this be used to remove articles that are detrimental to you?

Here, we will explain the differences between the “Right to be Forgotten” and the “Benefit of not being hindered in rehabilitation” that has been used so far, as well as future prospects.

“The Right to be Forgotten”

In the realm of the internet, where vast amounts of information are accumulated every moment, the role of search engines has become increasingly important for both information dissemination and browsing.

In response to this, the European Union Court of Justice recognized the “Right to be Forgotten” (right to be forgotten) of EU citizens in 2014, and based on this, demanded that Google remove legally disseminated debts and information from search results.

The EU Court of Justice stated that data subjects can request deletion if the data is “inappropriate in relation to the purpose of processing, lacks importance, or is excessive,” and that they can request search engines to “remove links to websites when data that was initially legal becomes unnecessary.” This “Right to be Forgotten” has also attracted significant attention in Japan.

In June 2015, a man who had been fined 500,000 yen for violating the Japanese Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children, demanded that Google remove information about his arrest from search results, as articles about his arrest were still displayed when his name and prefecture were searched, even more than three years after the incident. His request was granted.

In December 2015, the Saitama District Court approved a provisional disposition order in response to a preservation objection petition seeking to overturn this decision, once again ordering Google to delete the information.

This decision, which was the first in Japan to mention the “Right to be Forgotten,” attracted attention.

The decision acknowledged the removal of search results more than three years after the execution of an arrest and fine for child prostitution, stating:

“Even criminals who have once had their arrest history reported and known to society have the right to have their private lives respected as a personal right and have an interest in not being hindered in their rehabilitation. Depending on the nature of the crime, they should have the ‘right to be forgotten’ from society after a certain period of time has passed.”

Saitama District Court, December 22, 2015 (Gregorian calendar year) decision

If we consider that a person who has committed a crime, after receiving a guilty verdict or completing their sentence, should be able to return to society as a citizen and lead a peaceful life, which is in itself a form of rehabilitation without reoffending, then it can be said that displaying arrest history etc. for a person who has not reoffended and has passed a certain period of time poses a significant risk of infringing on the “interest of not being hindered in rehabilitation”.

“The Interest Not to Hinder Rehabilitation” or “The Right to be Forgotten”

Until now, when considering articles related to such crimes, the framework for comparison has been to weigh the “legal interest of not having facts related to one’s criminal record disclosed” against the “necessity of disclosing facts related to one’s criminal record using real names in works of authorship”, from the perspective of whether or not it infringes on the “interest of not being hindered in the peaceful life of the new social life that the subject is forming”. If the former is superior, the disclosure of the criminal record becomes illegal (Supreme Court of Japan, February 8, 1994, “Non-fiction ‘Reversal’ Case”).

However, this Saitama District Court decision took a step forward from the “interest of not being hindered in rehabilitation” indicated by the above Supreme Court decision, and adopted the concept of “the right to be forgotten”, which attracted attention.

If we organize the judgment criteria shown by the Saitama District Court, it will be as follows:

1. Even those who have been reported as arrested have the “right to rehabilitation”
2. After a certain period of time, there is a “right to be forgotten” about past crimes from society
3. Considering that it is difficult to erase information and lead a peaceful life when arrest information is displayed on the Internet, it should be judged whether or not to delete search results
4. The man is at risk of having his arrest history easily viewed, and the disadvantage is difficult to recover and significant

Denial of “The Right to be Forgotten”?

In response to this, the Tokyo High Court in July 2016 (Heisei 28) stated in a preservation appeal trial,

There may be cases where a request to make certain search results unviewable on the internet based on privacy rights is granted, but

1. The arrest history of child crimes is of public interest

2. Even considering the passage of time, the public nature of the arrest information has not been lost

Tokyo High Court decision, July 12, 2016

Based on this, the court stated that “child prostitution is a serious concern for parents, and although about five years have passed since the incident, its public nature has not been lost.” It overturned the decision of the Saitama District Court, which had recognized the “right to be forgotten” and allowed deletion, and rejected the man’s petition.

Regarding the “right to be forgotten,” the court ruled that “it is not legally defined, and a deletion request based on this right is no different from a traditional deletion request based on privacy rights.”

At that time, it was reported in newspapers and other media that “the Tokyo High Court denied the ‘right to be forgotten’,” which became a topic of discussion.

Supreme Court Decision

In January 2017, in a permission appeal to the Tokyo High Court, the Supreme Court acknowledged that “the interest of not having facts pertaining to an individual’s privacy arbitrarily disclosed should be subject to legal protection,” and made the following judgment:

Whether the act of providing information such as URLs of websites containing articles that include facts pertaining to privacy as part of search results is illegal or not, should be determined by comparing and weighing various circumstances related to the reason for providing such URL information as search results and the legal interest of not disclosing the facts. These circumstances include the nature and content of the facts, the extent to which the facts pertaining to the individual’s privacy are conveyed by providing the URL information, the degree of specific harm suffered by the individual, the individual’s social status and influence, the purpose and significance of the articles, the social situation at the time the articles were published and subsequent changes, and the necessity of describing the facts in the articles. As a result, if it is clear that the legal interest of not disclosing the facts is superior, it is reasonable to interpret that the search operator can be asked to remove the URL information from the search results.

Supreme Court decision, January 31, 2017

The Supreme Court provided the above criteria and in this case, it was stated that “child prostitution is positioned as sexual exploitation and sexual abuse of children, and is strongly condemned by society and prohibited by penalties, and can still be considered a matter of public interest.” Furthermore, “the search results in question are part of the search results when the name of the prefecture where the appellant resides and the appellant’s name are used as conditions, and it can be said that the range in which the facts are conveyed is somewhat limited.” Therefore, it was concluded that “it cannot be said that it is clear that the legal interest of not disclosing the facts is superior,” and the removal of the search results was not approved.

The Supreme Court’s decision is a framework that ultimately compares and weighs various circumstances, and concludes based on “which is greater, the reason to delete (the legal interest of not disclosing the facts) or the reason not to delete (the reason to provide the URL information as search results).”

Circumstances that form the basis for the legal interest of not disclosing the facts

• The range in which the facts pertaining to the individual’s privacy are conveyed by providing the URL information
• The degree of specific harm suffered by the individual by providing the URL information

Circumstances that can be said either way on a case-by-case basis

• The nature and content of the facts
• The individual’s social status and influence
• The social situation at the time the articles were published and subsequent changes

Circumstances that form the reason for providing the URL information as search results

• The purpose and significance of the articles
• The necessity of describing the facts in the articles

Comparative Consideration and the “Right to be Forgotten”

The Supreme Court’s decision above clearly defines the requirements for article deletion, stating that one can request the removal of certain URLs and other information from search results when “it is clear that the legal interest of not having the fact disclosed is superior”. This is done while strictly setting the standard of comparative consideration as “clear”.

Furthermore, the deletion of search results is considered within the general right to privacy, and there is no mention of the “right to be forgotten”.

However, I believe that this does not deny the “right to be forgotten”. There were reports that the “right to be forgotten” was denied at the time of the Tokyo High Court’s decision, but it is only stating that it can make a judgment by comparative consideration based on the existing standards, without introducing a new concept. Therefore, it is believed that the “right to be forgotten” was deliberately not mentioned.

Removal of Crime Reports

Removing crime reports is a complex issue. Unlike cases involving defamation or slander, crime reports are based on truth. Since the articles themselves are true, requesting their removal inevitably raises the issue of balancing this with the freedom of the press.

In cases where it was disputed whether it was illegal for the printing and distribution of publications to be prohibited (preliminary injunction) by a court’s provisional disposition order, the Supreme Court of Japan stated,

“It is reasonable to understand that a person whose honor, which is an objective evaluation received from society regarding one’s personality, conduct, reputation, credit, and other personal values, has been illegally infringed upon, can demand the perpetrator to eliminate the ongoing infringement and prevent future infringements based on the right to honor as a personal right.”

Supreme Court of Japan, June 11, 1986 (1986)

This is one of the rulings that have been made.

In this Supreme Court decision, it is stated that in order for an injunction to be granted, it must meet the requirements that “the content of the expression is not true, or it is clearly not solely for the purpose of serving the public interest, and the victim is at risk of suffering significant and irreparable damage.”

Therefore, in the case of arrest reports like the one in the Saitama District Court, since the article itself is true, it does not meet the requirement that “the content of the expression is not true,” and if it is a report by media such as newspapers, “solely serving the public interest” can also be recognized. Therefore, the Saitama District Court may have thought that it was necessary to take a different legal structure and brought in the “right to be forgotten.”

Of course, just because something is true doesn’t mean it can’t be deleted. There are cases of personal information leaks and revenge porn. The removal of articles about past crimes is simply considered within the general right to privacy.

Summary: It is Important to Consider How Much Time Pass when You Face the Issue of the “Right to be Forgotten”

The term “right to be forgotten” doesn’t explicitly appear in the Supreme Court decisions in Japan. However, we can consider that the concept emerged due to the widespread adoption of the Internet. Given the fluid circumstances surrounding this issue, the court seems to have left it open for future interpretation rather than making a definitive ruling at this time.

Moving forward, we can expect more judicial decisions that follow the Supreme Court’s balancing test for removal requests from search results. Particularly, the element of “elapsed time” could become increasingly important in future case law. This pertains to how long must pass before an individual’s personal information no longer qualifies as a “matter of public interest.”