Explaining the Process of Defamation Lawsuits and Counterclaims

In September 2020 (Reiwa 2), a university professor who was sued for defamation by a Liberal Democratic Party senator over a post on Twitter, counter-sued in the Tokyo District Court, claiming the lawsuit was a Strategic Lawsuit Against Public Participation (SLAPP) intended to harass, and seeking 1.5 million yen in damages.

A counterclaim, as seen in this case, is a lawsuit initiated by the defendant of an original lawsuit (the main suit) against the plaintiff, seeking adjudication by the same court within the same legal proceedings.

In this article, we will explain how counterclaims, which can also be seen in defamation lawsuits, are handled in actual court proceedings.

What are Main Actions and Counterclaims?

A person who has become a defendant in a lawsuit can file a counterclaim with the court where the main action is pending, up until the conclusion of the oral argument, but only if the purpose of the counterclaim is related to the claim or defense method of the main action (Article 146, Paragraph 1 of the Japanese Civil Procedure Law).

“Cases where the purpose is related to the claim of the main action” could include, for example, a situation where the defendant counterclaims for damages against the plaintiff in response to the plaintiff’s claim for damages in a traffic accident.

As an example of “cases where the purpose is related to the defense method”, in a lawsuit where the plaintiff demands the defendant to pay money, the defendant may assert a set-off defense against the plaintiff and claim for the payment of the balance after the set-off.

Counterclaims can also be seen in lawsuits for infringement of the right to honor. As in the examples mentioned at the beginning, if you think the lawsuit is unjust, you may consider filing a counterclaim. If you are in a heated argument, you don’t have to let yourself be unilaterally pursued for liability for infringement of rights as a defendant.

Here, it is important to note that the filing of a counterclaim must be done “until the conclusion of the oral argument”, that is, until the end of the fact-finding trial (usually the trial at the High Court), and furthermore, when it would “significantly delay the lawsuit procedure”, the filing of a counterclaim is not allowed (Article 146, Paragraph 1, Item 2 of the Japanese Civil Procedure Law). In such cases, the counterclaim will be dismissed as illegal.

Defamation, Disciplinary Action Applications, and Counterclaims

There is a case where a lawyer filed a counterclaim against a plaintiff who applied for disciplinary action and claimed damages for defamation due to a posted article (Tokyo District Court, October 16, 2018 (Gregorian calendar year)).

Progress of the Trial

The plaintiff is a corporation that designs, constructs, sells, and operates temporary dormitories. The defendant is a lawyer who runs a blog for his law firm.

The defendant lawyer posted on his blog that the plaintiff company, which was soliciting investments for accommodation facilities for workers involved in the reconstruction work of the Great East Japan Earthquake, was a scam, stating, “It’s a very plausible story, but it’s completely false and has no substance. If you mistakenly provide funds, they will never come back.” In response to this, the plaintiff company filed a disciplinary request with the lawyer’s bar association and simultaneously filed a lawsuit claiming that it had lowered its social evaluation and interfered with its business.

In response, the defendant lawyer, who became the defendant, claimed that the plaintiff was a fraudulent company and that the plaintiff’s investment solicitation was a fraudulent act to deceive money. Despite being aware of this, the plaintiff took actions such as filing a disciplinary request for the blog post that pointed this out, claiming that it was illegal. The lawyer claimed that such actions by the plaintiff constituted a tort and filed a counterclaim.

Judgment of the Court on the Original Suit

The court first recognized that the defendant’s posted article, which indicated that the plaintiff was soliciting investment in a dormitory for workers involved in the decontamination business related to the Fukushima Daiichi nuclear power plant accident, was a scam, and that this fact damaged the plaintiff’s credit and reputation.

On the other hand, the court recognized that the purpose of posting the article was to enlighten readers who saw the article so that they would not fall victim to the fraud indicated in the article. Therefore, the court recognized that the purpose of the defendant’s posting of the article was solely for the public interest, and that the facts indicated were related to the public interest.

Then, the court examined whether the facts indicated in the article were true or whether the defendant had a legitimate reason to believe that they were true. The court recognized that the business related to the investment story proposed by the plaintiff was based on a rental contract with no substance, and that there was no prospect of recovering the investment. The court recognized that the plaintiff, while recognizing this, solicited investment in the business by pretending that the investment could be recovered quickly and that a profit could be expected. Therefore, the court recognized that this constituted a fraudulent act. The court dismissed the plaintiff’s claim in the original suit, ruling that the defamation caused by the article was not illegal and that no tort had been committed.

Judgment of the Court on the Counterclaim

The court first recognized that the disciplinary request to the bar association to which the lawyer belonged lacked a legal basis, and that the plaintiff, as the perpetrator of the fraud, naturally recognized this. Therefore, the court recognized that the plaintiff had made the disciplinary request despite knowing that it lacked a legal basis. The court ruled that such a disciplinary request was clearly illegal as it lacked appropriateness in light of the purpose of the lawyer disciplinary system, and that the plaintiff’s tort against the defendant was established.

Also, regarding the original complaint, the court recognized that the plaintiff had filed the original complaint despite knowing that the rights claimed by the plaintiff in the original complaint lacked a legal basis. Therefore, the court ruled that the act of filing was significantly inappropriate in light of the purpose of the judicial system and could not escape the evaluation of being illegal in terms of tort law. The court ordered the plaintiff to pay 1 million yen in damages for the disciplinary request and the original complaint.

While there are many cases where the original suit is accepted and the counterclaim is dismissed, there are also cases like this one where the original suit is dismissed and the counterclaim is accepted. If you are sued unfairly, it is possible to fight not only in the lawsuit but also to file a counterclaim to pursue the other party’s responsibility.

Defamation and Counterclaim

The plaintiff, who operates a website about aquariums (marine life breeding facilities) on the Internet, sued the defendant, who operates a similar site, claiming that the defendant posted an article on 2channel that defamed the plaintiff’s reputation and credit. In response, the defendant counterclaimed, arguing that the plaintiff had posted an article on his own site that violated the defendant’s honor and privacy, such as the progress of the lawsuit (Kanazawa District Court, March 20, 2019 (2019 in Gregorian calendar)).

Progress of the Trial

The plaintiff claimed that the defendant used extreme and vulgar expressions such as “showing off a tank full of hermit crabs, gobies, and algae on FB”, “rust from his own body. This is what happens when you put yourself on a pedestal and criticize others”, “idiot”, “senile”, “disqualified as a human being”, “looking down on people”, etc., making viewers perceive the plaintiff as a person with low moral sense who engages in inappropriate or unfair acts in information distribution, and significantly lowering the plaintiff’s social evaluation.

In response, the defendant argued that the plaintiff had exposed the defendant’s real name, residential municipality, and business name on his own site regarding the progress of this lawsuit. The purpose of disclosing a trial is to ensure the fairness of the litigation process, not to make the content of the lawsuit known to the public.

Furthermore, since the content of individual lawsuits is not widely known to the public, the act of specifically and detailedly describing the real names and content of the parties in the litigation process constitutes an infringement of the right to honor or privacy. Therefore, the defendant sought damages for this case and counterclaimed.

Court’s Judgment on the Original Suit

Regarding the original suit, the court recognized that the plaintiff did not immediately respond to questions that were disadvantageous to his own business activities, such as whether there was a legal problem with the lack of a PSE mark display on the LED lights sold by the plaintiff. On the other hand, the court recognized that the defendant’s posts, which claimed that the plaintiff was a person who “trolls” to interfere with the defendant’s business, lowered the plaintiff’s social evaluation. Even considering the expressions that amount to personal attacks such as “idiot” and “disqualified as a human being”, it cannot be recognized that they were made solely for the purpose of public benefit. The court recognized defamation and ordered the defendant to pay 700,000 yen in compensation for emotional distress, 367,200 yen in expenses, 70,000 yen in attorney’s fees, for a total of 1,137,200 yen.

Court’s Judgment on the Counterclaim

Regarding the counterclaim, the court recognized that the plaintiff had posted articles on the bulletin board of this case and on the plaintiff’s site of this case, identifying the defendant, who is the representative of a competitor company, as the “criminal” who “defamed” the plaintiff and the plaintiff’s site, and repeatedly wrote false descriptions such as “filed a claim for damages for defamation, credit defamation, and business defamation”, “committed nuisance (trolling by impersonation)”, “repeatedly wrote false descriptions with strong malice”, “the defendant’s delusions and actions are too much”, etc. If a general person reads these with ordinary caution, they would get the impression that the defendant is a person who has repeatedly committed civil or criminal illegal acts such as defamation, credit defamation, or business defamation against the plaintiff, and these expressions can be considered to lower the defendant’s social evaluation. Therefore, it was recognized that they constitute defamation against the defendant.

However, it was recognized as a fact that the defendant posted “delusional habit” and “full of lies” in the FB defendant’s post article of this case. The expressions such as “false description with strong malice”, “unimaginable bipolarity”, “the defendant’s delusions and actions are too much”, etc., when compared with the defendant’s post content such as “delusional habit” and “full of lies”, cannot be said to be one-sided personal attacks. The expression of the plaintiff’s opinion or criticism by the plaintiff’s post article on this site is recognized as not illegal, intentional, or negligent, even if it constitutes defamation. Therefore, the court ruled that there was no reason for the part of the defendant’s counterclaim that claimed defamation.

On the other hand, the plaintiff’s site post article of this case publicly discloses the defendant’s name, handle name, residential prefecture name, and city, town, and village name on the Internet as the other party of the damage claim lawsuit based on defamation, etc. This is content that a general person does not want to be disclosed carelessly. Even if the defendant had disclosed his name, handle name, and address on the Internet due to business necessity, it is clear that he did not want to have this linked to a damage claim lawsuit for defamation, etc. and disclosed. It cannot be considered that the defendant has abandoned the interest that he does not want to be disclosed carelessly. Therefore, the court recognized an invasion of privacy and ordered the plaintiff to pay 200,000 yen in compensation for emotional distress and 20,000 yen in attorney’s fees, for a total of 220,000 yen.

As in this case, there are cases where both the original suit and the counterclaim are recognized. In such cases, contrary to this case, the original suit may be recognized only in part, and the counterclaim may be fully recognized.

Summary: Consult Lawyers to Determine whether or not to File a Counterclaim

If a counterclaim is filed by the defendant after the original lawsuit has been initiated and the proceedings have significantly progressed, it may be perceived as a desperate measure. However, if the defendant has a valid claim against the plaintiff, it is often advisable to file a counterclaim at the early stages of the original lawsuit.

If you are sued, it is recommended to consult with an experienced attorney as soon as possible to determine whether or not to file a counterclaim.