Not Prosecuted Due to Insufficient Suspicion After Arrest: Is It Possible to Delete Arrest Reports from Search Results?

Being arrested is often equated with being guilty, but this is not always the case. If a person is found to be wrongfully accused or innocent after being arrested, or if the charges are dropped due to insufficient suspicion, they are not considered guilty. Naturally, those who have been arrested would want to remove the search results of their arrest reports. However, in Japan, the media often swarm at the point of arrest and reports are made, but follow-up reports are rare when charges are dropped, leaving only the arrest reports in the search results.

Regarding the deletion of search results, the Supreme Court of Japan made the following decision on January 31, 2017 (Heisei 29): “If it is clear that the legal interest of not having the fact disclosed is superior, it is possible to demand the search operator to delete the URL and other information from the search results.” Since this decision, there have been many voices saying that it has become difficult to delete search results related to arrest articles and arrest history, but how is the deletion of search results of articles stating that charges were dropped due to insufficient suspicion judged?

https://monolith.law/reputation/deletion-arrest-article[ja]

不起訴記事の検索結果削除の英訳

Just because someone has been arrested does not necessarily mean they have been found guilty. There are cases where the person is innocent, wrongfully accused, or not prosecuted.

不起訴と嫌疑不十分の英訳

There are mainly three types of non-prosecution decisions. In addition, there are various other situations such as when the act does not constitute a crime, the death of the suspect, withdrawal of a complaint in a complaint-required crime, etc.

• Prosecution suspended (The prosecutor decides not to prosecute considering various circumstances such as there is suspicion but the crime is minor, a settlement has been reached, etc.)
• No suspicion (As a result of the investigation, there is no suspicion of a crime)
• Insufficient suspicion (Even if the suspicion is not completely cleared, there is insufficient evidence to prosecute)

Among these non-prosecution cases, there is a case where a plaintiff who was not prosecuted due to insufficient suspicion requested the removal of search results.

https://monolith.law/reputation/delete-false-positive-arrest[ja]

Lawsuit Requesting Removal of Search Results

The plaintiff, against Google LLC, a company that provides a website search service, argued that their privacy was being violated. When the plaintiff’s search words were used as conditions on the search site Google, URLs, titles, and excerpts of websites containing information about the plaintiff’s arrest were displayed. Based on their personal rights, the plaintiff demanded the removal of such information. Despite the defendant’s obligation to remove this information, they did not comply with the plaintiff’s request. The plaintiff argued that this unnecessary continuation of their privacy violation constituted a tort, and sought damages.

The plaintiff was arrested and detained in 2012 on suspicion of rape, but was released while the case was still pending. The prosecutor’s office decided not to indict the plaintiff due to insufficient suspicion.

On June 2, 2017, the plaintiff, through their attorney, requested the defendant to remove the aforementioned information. In response, the defendant asked for documents to support the plaintiff’s claim. The plaintiff’s attorney sent a notice of non-prosecution (without any explanation for the non-prosecution). Despite ongoing negotiations, the defendant decided not to remove the information on June 23 of the same year and informed the plaintiff. In response, the plaintiff claimed that their privacy was being violated and demanded the removal of the search results based on their personal rights. They also argued that their privacy was unnecessarily being violated due to the defendant’s refusal to comply with the removal request. Therefore, based on the tort, the plaintiff filed a lawsuit seeking 1 million yen in compensation for emotional distress, 300,000 yen in attorney fees, totaling 1.3 million yen in damages.

Proof of Non-Prosecution

In order to prove that you were not prosecuted due to “insufficient suspicion,” you can obtain a document called a “Non-Prosecution Notice” that states the reason for non-prosecution. Whether to prosecute a specific suspicion case or not is decided by the prosecutor, but even if it results in non-prosecution, the suspect does not automatically receive a Non-Prosecution Notice stating “You were not prosecuted.” To obtain a Non-Prosecution Notice, the suspect must request it from the prosecutor based on Article 259 of the Japanese Criminal Procedure Law.

When a prosecutor has decided not to prosecute a case, he/she must promptly inform the suspect of this if there is a request from the suspect.

Article 259 of the Japanese Criminal Procedure Law

Generally, the reason for non-prosecution is not stated in the Non-Prosecution Notice, so you need to apply for a document that states the reason for non-prosecution. Even if a suspect receives a notification of non-prosecution due to a request to the prosecutor, the prosecutor is not obliged to disclose the reason for non-prosecution. However, if you request disclosure of the reason when requesting a Non-Prosecution Notice, it seems that the prosecutor often discloses the reason for non-prosecution in writing.

Plaintiff and Defendant’s Arguments

The plaintiff argues that the alleged incident in question is a false accusation, and that they have consistently denied the alleged facts since the time of their arrest. They have indeed received a non-prosecution decision due to insufficient suspicion. Furthermore, more than seven years have passed since the arrest, and there is almost no possibility of being prosecuted for the alleged incident in the future. The plaintiff, who is not a celebrity but an ordinary person, argues that there is no social significance in the fact of their arrest being made public on the Internet. The fact of their arrest is a matter of privacy that the plaintiff does not want to be known to others. In reality, the plaintiff has suffered significant disadvantages in social life, such as being asked about the fact of their arrest, which was displayed as a search result, by colleagues at work and acquaintances. If the information about the URL continues to be displayed, there is a risk that the plaintiff’s friends and children will come into contact with the fact of the arrest, and the disadvantages in social life will continue into the future.

In response, the defendant argues that many of the URL information in question not only reports the fact of the arrest, but also the fact that the plaintiff was released on bail pending prosecution and received a non-prosecution decision due to insufficient suspicion, so it cannot be said to be essentially disadvantageous to the plaintiff. However, the plaintiff argues that the fact of being arrested alone suggests that a crime has been committed, and that many of the URL information in question does not include the fact that the real culprit has been identified and that the alleged incident is a false accusation, so the plaintiff is suffering a significant disadvantage in social life due to the display of the URL information.

Furthermore, the defendant argues that insufficient suspicion merely means that the prosecutor has exhausted the investigation and found insufficient evidence to establish a crime, and it does not mean that there is no possibility of being prosecuted in the future. More than seven years have passed since the arrest, but given that the statute of limitations for prosecution of rape is 10 years, the fact of the arrest is still a matter of public interest.

Court Decision

The court examined the case based on the standard of comparative weighing indicated by the Supreme Court decision on January 31, 2017 (Heisei 29), and stated that the fact of the case, which is the suspicion of rape, is generally a matter of legitimate concern in society. However, it also stated:

“The case was not prosecuted due to insufficient suspicion and was released (omitted), and more than seven years have passed without being interrogated even once. Considering the investigation process of this case, it is extremely difficult to think that there is sufficient evidence to admit that the plaintiff committed the act related to the true suspicion of this case. Although the statute of limitations for prosecution has not been completed (Article 250, Paragraph 2, Item 3 of the Japanese Code of Criminal Procedure), it can be said that there is virtually no realistic possibility of being prosecuted for the suspicion of this case in the future.”

Sapporo District Court, December 12, 2019 (Reiwa 1) Judgment

Based on this, the court ruled that “it is clear that the plaintiff’s legal interest in not disclosing the facts of this case outweighs the need to maintain the display of the search results of this case,” and ordered the defendant to delete the search results of this case.

In this judgment, it is also mentioned that the act related to the suspicion of this case was not performed in the course of performing duties, nor was it performed using the position, which is a reason for the low social necessity to maintain the display of the search results of this case.

Furthermore, the court acknowledged that “although the case was not prosecuted due to insufficient suspicion, it is often realistically thought that a person who is arrested has committed the suspected act related to the arrest,” and “those who view the search results of this case or use the search results to view the website where the facts of this case are posted are likely to suspect the plaintiff of guilt, contrary to the legal principle of presumption of innocence.” However, in Japan, there is a reality that “being arrested” is almost synonymous with “being guilty,” so this is a correct point.

However, along with the deletion of the search results, the plaintiff claimed that the defendant unreasonably refused to respond to the deletion request, resulting in the ongoing violation of privacy and causing mental distress. The court did not accept the claim for damages of 1.3 million yen, stating that even referring to the 2017 Supreme Court decision (Heisei 29), it is not possible to make a definitive judgment on whether the deletion of search results can be accepted in this case, which is different from the case. Furthermore, since the plaintiff could not present objective evidence (such as a notice of non-prosecution) that the reason for non-prosecution was insufficient suspicion during the negotiation, the defendant could not judge whether the plaintiff truly received non-prosecution due to insufficient suspicion.

“Non-prosecution due to insufficient suspicion” was judged to meet the requirement of “clear case” in the Supreme Court decision, but it seems that “Notice of non-prosecution (no description of the reason why the plaintiff was not prosecuted)” does not fall under the “objective evidence (such as a notice of non-prosecution) that the reason for non-prosecution was insufficient suspicion” as stated by the court.

Summary

Since the Supreme Court decision, it is said that courts have become less likely to approve the removal of search results related to arrest articles and arrest records. However, the removal of search results in cases where charges are not filed due to insufficient suspicion is ultimately the result of a comparative balance, and depending on other conditions, it is highly likely to be approved.

Measures by Our Firm

Monolith Law Office is a legal office with high expertise in both IT, particularly the internet, and law. In recent years, there is a potential for defamation and slander to occur following the spread of arrest reports and similar news on the internet. Such defamation and slander can cause serious damage as a “digital tattoo”. Our firm provides solutions for dealing with these “digital tattoos”. Details are provided in the article below.