NHK 'Digital Tattoo' Episode 3: IT Technology and Law

The NHK Saturday drama “Digital Tattoo” is a drama that deals with reputational damage on the internet, featuring numerous legal measures and IT investigative methods by lawyers. As the lawyer who was in charge of the original plan for this drama, I will explain the legal measures that appear in episode 3.

https://monolith.law/reputation/nhkdrama-degitaltatoo-02[ja]

Episode 3 tells the story of a plain office worker, Ms. Kayo Yamada, who lives in Itabashi Ward and runs the blog “Sparkling Minato Ward Girl – Kaorin’s Sparkling Diary”. She slanders Ms. Ayako Nakanishi, a business consultant. I will provide commentary on this scene.

Identifying Anonymous Blog Operators

“Um… I’m being sued.”
“You are? Why?”
“I criticized someone on my blog.”

NHK Saturday Drama “Digital Tattoo” Episode 3

Ms. Kayo Yamada, operating a blog under the pseudonym “Sparkling Minato Ward Girl, Kaorin”, received a demand for compensation from the lawyer representing Ms. Ayako Nakanishi, a management consultant, whom she had defamed on her blog. Despite running her blog anonymously, her identity was revealed.

Overview of Sender Information Disclosure Request

When defamation occurs on an anonymous blog, the victim can identify the operator by initiating a “sender information disclosure request”. This procedure is based on the so-called Japanese Provider Liability Limitation Act, and in simple terms, it involves:

• Targeting a business operator who is not the author of the article (or the blog operator in the case of a blog), but who has some involvement in the publication of the article
• Requesting the disclosure of information about the person who wrote the article

In the case of defamation on an anonymous blog:

• The blog service operator, while not the blog operator themselves, is involved in the publication of the article and thus becomes the target of this procedure
• It is possible to request the disclosure of information about the blog operator that the blog service operator has

The blog service operator, for example, in the case of “Ameba Blog”, would be CyberAgent, Inc., the company that operates the service.

Information that can be Requested for Disclosure from Blog Service Operators

So, what kind of information does CyberAgent, Inc. have about the operators of anonymous blogs? There are two main types of “information”.

• Personal information etc. that CyberAgent, Inc. holds in order to request service registration or charge fees to the blog operator
• IP address related to the communication at the time of article writing

The former and the latter are different in nature.

The former is information that the blog service operator (CyberAgent, Inc.) has obtained for the purpose of providing their own service. The type of information obtained varies depending on the blog service. In the case of Ameba Blog, the service can be registered with only information such as “email address” and “date of birth”, and CyberAgent, Inc. does not hold the blog operator’s address or name in the first place. If you request the disclosure of information that is not held, you will only receive a response that “we do not have and cannot disclose the information”.

However, the latter is different. Regardless of the blog service, when an article is posted, there is communication from the blog operator saying “I am posting an article”, and it is possible to record the blog operator’s “IP address” at that time. Since many blog services record this IP address, if you request the disclosure of the IP address, you will receive a response that “we have that information and can disclose it”.

Provisional Disposition Procedure against Blog Service Operators

In many cases, a sender information disclosure request does not succeed in out-of-court negotiations, and a procedure through the court, called a “provisional disposition”, is necessary. The address, name, and even the IP address are personal information of the users of the service from the perspective of the blog service operator (CyberAgent, Inc.). There are many cases where they show an attitude of “we will disclose if ordered by the court, but we cannot disclose in voluntary negotiations”.

That’s why, when dealing with an anonymous blog, it’s important to investigate in advance what kind of information the blog service operator is collecting. In the worst case, you may not realize that the blog service operator does not collect addresses or names, and you may initiate a provisional disposition through the court to “request the disclosure of the address and name”, win the provisional disposition, but only receive a response that “we do not have that information”.

Court Procedure against Providers

After requesting the disclosure of the IP address in a provisional disposition procedure against the blog service operator and receiving the disclosure of the IP address, you will then request the disclosure of the address and name of the blog operator from the provider, saying “disclose the address and name of the contractor who was using that IP address at that time”. This procedure usually requires a court procedure.

For more detailed explanations of these series of procedures, please refer to another article.

https://monolith.law/reputation/disclosure-of-the-senders-information[ja]

Claims for Damages Against Blog Operators

Once a provider discloses the address and name of a blog operator, a claim for damages can be made against that party.

“…It’s defamation, pay me compensation…”
“How much is the compensation?”
“…Three million yen”

NHK Saturday Drama “Digital Tattoo” Episode 3

In the drama, Ms. Kayo Yamada is being claimed 3 million yen by Ms. Ayako Nakanishi, a management consultant. Logically, this is because:

• Ms. Kayo Yamada’s post was illegal, and for making such illegal posts
• She is claiming compensation for the “damage”

That’s what it is.

What kind of damages can be claimed against the “perpetrator”?

There are two main types of “damages”.

• The investigation costs (attorney fees) used by Ms. Ayako Nakanishi, a management consultant, to identify that Ms. Kayo Yamada is the operator of the blog
• Compensation for the mental damage suffered by Ms. Ayako Nakanishi, a management consultant, due to the illegality of the blog article, etc.

In the case of online reputation damage, the “attorney’s fees paid to the attorney to identify who the perpetrator is” can be claimed against the perpetrator. In the drama, there is no specific depiction, but presumably, Ms. Ayako Nakanishi, a management consultant, has hired a lawyer and:

• Provisional disposition proceedings against the blog service operator
• A lawsuit against the provider used by Ms. Kayo Yamada

The attorney’s fees paid to the attorney for these are claimable from Ms. Kayo Yamada as “investigation costs”.

And the so-called “compensation for consolation” can be claimed in addition to these. However, as it is often said, Japanese courts do not readily recognize high amounts of mental damage. Although it is a difficult issue to indicate a “market price”, it can be said that the compensation for defamation is often capped at around 500,000 to 1 million yen.

As a total of these, Ms. Ayako Nakanishi, a management consultant, is claiming 3 million yen from Ms. Kayo Yamada.

What else can be sought besides “claims for damages”?

If the “perpetrator” who operates the blog can be identified, what can be claimed against that “perpetrator” is, broadly speaking:

• (If the article is still published) Deletion of the article
• Claim for damages
• Publication of an apology advertisement

Conversely, it is difficult to make claims beyond this in court. A common issue is the prohibition of new article publications. Having suffered from defamation, one would want to demand “don’t write about me anymore”, but it is difficult to legally demand this and obtain a judgment to that effect in court.

However, even if it is “difficult to demand legally”, the parties are free to settle and make such promises. Therefore, in practice, there are things like:

1. Delete the article
2. Do not make any references to the victim in the future (if you do, pay a large amount of damages)
3. If 2 is observed, waive (part of) the right to claim damages

These are the contents of the settlement. If such a settlement agreement is made, the agreement itself is legally valid, so you can achieve a settlement that cannot be realized in court.

” style=”flat” background=”#2FA8E1″ size=”5″]Click here for a detailed explanation of “Digital Tattoo“