Legal Issues with Real-Name Reporting of Arrest Records and Criminal History: Does it not Constitute Defamation or Infringement of Privacy Rights?

The facts of being “arrested” and “convicted” are generally matters that individuals do not wish to disclose publicly.

Reporting on a person’s criminal record or arrest history by name not only lowers their social reputation, but can also be considered an invasion of privacy.

Despite this, we often see reports in newspapers and on television that use real names. This is thought to be because the real name itself is a “fact related to public interests,” or because the benefits of disclosing the real name outweigh the benefits of not disclosing it, and therefore, defamation or invasion of privacy does not constitute a tort.

For some time, some journalists and bar associations have argued that crime reports involving ordinary people as suspects or defendants should be anonymous as a rule. So, how are these cases judged in court?

In this article, we will explain the course of a lawsuit in which a man who was arrested by the Aichi Prefectural Police and not prosecuted, and who claimed to have been harmed by a report using his real name, sought damages from the three newspapers that reported his name.

Case Overview

A man who was running a company in Nagoya City, aiming at management consulting and other businesses, was arrested on February 10, 2010 (Heisei 22), on suspicion of using a forged private document with a seal.

The suspected fact was that about four years earlier, he conspired with a woman to favor a joint guarantee debt claim lawsuit that the woman had filed in court. He submitted and used a management contract with a forged joint guarantor column to the court through the woman’s attorney.

The man consistently denied the suspected fact until March 3, but he was not prosecuted.

The day after the arrest, three newspapers, the Mainichi Shimbun, the Asahi Shimbun, and the Chunichi Shimbun, reported the man’s arrest fact in his real name. However, in each article, the man was referred to as a “self-proclaimed consultant company executive,” and the headline was “Man arrested for using a forged contract.” Although it was mentioned that “the suspect denies it as ‘baseless’,” articles were published with descriptions such as “a man who used a forged contract.”

In response to this, the man filed a lawsuit seeking damages, claiming that his honor was defamed and his feelings of honor and privacy were violated.

The points of contention were the expressions in the article such as “self-proclaimed” and “Forgery, busted!” and the appropriateness of reporting in real names associated with them.

Speaking from the results, the results were divided in each newspaper. Let’s see what the court’s judgment was and what the results were in each newspaper.

Plaintiff’s Argument

The plaintiff argued that,

Each article points out facts such as the female entrepreneur who conspired was also sent documents, the lawyer admitted that it was a forgery, and it is certain that it was forged, and the plaintiff submitted a business consignment contract to the Nagoya District Court, which lowers the social evaluation.

Also, if you read a newspaper article with the word “self-proclaimed” attached to the profession, as a general reader, you get the impression that you are pretending to be that profession, and if you describe “self-proclaimed” to those who are actually in that profession, it lowers their social evaluation.

Furthermore, regarding privacy infringement, the plaintiff argued,

They also reported personal information such as name, age, occupation, and part of the address, and these information are information that the private person does not want to disclose based on the sensitivity of the general public, so it falls under privacy and should be protected.

was stated.

Claims of the Newspaper Company

In response, the Chunichi Shimbun argued,

The facts indicated in the article are not the facts of committing the crime of using a forged private document, nor the facts as if committing the crime of using a forged private document, but the facts that the Aichi Prefectural Police arrested the plaintiff on suspicion of using a forged private document, the fact that the Aichi Prefectural Police announced the arrest, and the fact that the plaintiff denies the arrest allegations. Therefore, it cannot be said to lower the plaintiff’s social reputation.

They also argued about the point where they described the plaintiff’s occupation as “self-proclaimed”,

It does not give the impression that the plaintiff is a malicious person who clearly commits a crime without remorse. After the announcement by the Aichi Prefectural Police, when interviewing the police officer, there was a response that there was no confirmation that the plaintiff’s occupation was a consultant. Therefore, we described this situation as “self-proclaimed”. Writing “consultant” without confirmation may result in a description that does not reflect the reality, so it is an expression allowed by social common sense.

And about the real-name reporting, they argued,

The coordination of freedom of expression and privacy infringement should be considered by comparing the necessity of both and examining whether the infringement is within the acceptable limit in social life. Identifying the suspect in crime reporting is a basic element and an important public concern along with the crime fact itself. It also has important meanings such as ensuring the truthfulness of the report content, monitoring whether there is arbitrary information manipulation by the investigative agency, and preventing unnecessary confusion in the surrounding community due to anonymous reporting and spreading of false rumors. Therefore, if the public nature and public interest purpose of the report content are recognized, and there are reasonable reasons to believe that the report content is true or believed to be true, and if the tort of defamation is not established, it should be said that the tort based on privacy infringement is not established in principle.

Each company argued this, but this is a general view.

Judgment of the Tokyo District Court

The court, regarding the article in the Chunichi Shimbun, stated:

Looking only at the headlines, such as “Forgery, busted!” and “Contract, appraisal failed,” it could be read as definitively stating that someone tried to use a forged contract, which was revealed to be a forgery through appraisal, beyond the mere fact that suspicion has been raised. However, the subheading states “Company executive under suspicion arrested, denies charges,” and the text further states “Aichi Prefectural Police… arrested and announced” and “According to the station… there is suspicion,” so a general reader could read this as an article based on a police announcement. It cannot be said that it definitively states that the plaintiff committed the crime of using a forged private document with a seal, and it merely states the fact that the plaintiff was arrested on suspicion of using a forged private document with a seal and the plaintiff’s explanation of this. Therefore, it cannot be said that the article lowers the plaintiff’s social reputation.

The court made the same judgment for the other two newspapers and did not recognize defamation. Also, regarding the infringement of honor feelings, it stated:

Regarding the statements “Forgery, busted!” and “Contract, appraisal failed,” it could be read as containing a nuance that mocks the plaintiff as a criminal who was caught forging, to attract the reader’s interest. However, it cannot be said that this is a significant infringement that anyone would feel absolutely unacceptable if such an act were done to them, so it cannot be said that it infringes on the plaintiff’s feelings of honor beyond the tolerance limit accepted by social norms, and no tort is established.

And regarding the invasion of privacy, it stated:

Although there is a discussion in Japan about revising the principle of real-name reporting in crime reporting, even now, the identification of suspects in crime reporting is a basic element of crime reporting, and it is a matter of public concern along with the crime facts themselves. Reporting the fact of arrest along with personal information such as the suspect’s name, age, occupation, and part of the address is generally necessary to ensure the truthfulness and accuracy of the report, and by ensuring the truthfulness of the report, it can monitor whether the investigation by the investigative authorities is being conducted properly and whether there is any arbitrary manipulation of information, and also prevent unnecessary manhunts in the surrounding area. Therefore, it cannot be said that the necessity to disclose facts belonging to the plaintiff’s privacy is small.

Tokyo District Court, September 30, 2015 (2015)

And it stated that the articles in question, which reported the fact of arrest along with basic elements of the incident such as the suspect’s name, age, occupation, and part of the address, have the significance and necessity of reporting this, which takes precedence over the legal interest of not disclosing this privacy-related information, and therefore, there is no invasion of privacy.

As for the article in the Mainichi Shimbun, it stated:

Despite the fact that the suspected fact of forgery of a private document with a seal is not included, the description that the plaintiff conspired with a woman to forge a contract and was arrested for the crime of forgery of a private document with a seal is different from the police announcement. And, the crime of forging a private document with a seal and the crime of using a forged private document with a seal are clearly separate crimes, and if the crime of using a forged private document with a seal is committed with the crime of forging a private document with a seal, the criminal situation is evaluated differently, so the fact that the plaintiff was arrested for the crime of forging a private document with a seal, even if the fact of arrest for the accompanying crime of use stated in the same sentence is true, cannot be said to have been proven to be true in its important part.

Recognizing defamation and infringement of honor feelings, it ordered the payment of 500,000 yen in consolation money, 50,000 yen in attorney fees, for a total of 550,000 yen.

The plaintiff, dissatisfied with this, appealed.

The Decision of the Tokyo High Court

The court first addressed the appellant’s (the plaintiff in the first instance) claim that general readers, under the impression and influence of the headlines of the articles in question, which are definitive in nature, would get the definitive impression that the appellant is a criminal who has used a forged contract. The court stated that the headlines of the articles merely display fragmentary facts such as the fact that the forgery was detected and the contract was denied in the appraisal, and the use of the forged contract in the monetary claim against the guarantor. The impression and influence that general readers get from reading these headlines are very limited. Furthermore, each article also states that the appellant is at the stage of being suspected of a crime and that the appellant denies the suspicion. Therefore, it cannot be recognized that the general reader gets a definitive impression that the appellant is a criminal who has used a forged contract due to the presence of the above-mentioned headlines.

The court did not recognize defamation. Regarding the term “self-proclaimed” used in the articles, the court stated:

The term “self-proclaimed” is a widely and generally used expression even when there is no corroboration. Considering the articles in question, they merely state “self-proclaimed company executive” or “self-proclaimed consultant” following the appellant’s address. There is no mention that particularly adds a nuance of “in reality, it is not so”. Therefore, it cannot be recognized that general readers would get the impression from the term “self-proclaimed” that the appellant is lying about his occupation, and it cannot be recognized that this expression in itself lowers the appellant’s social evaluation.

The appellant argued that “mentioning the appellant’s name is irrelevant to public interest and public benefit.” However, the court stated:

Identifying the suspect in crime reporting is a fundamental element of crime reporting and is a matter of significant public interest, along with the crime itself. Also, the suspected incident related to the arrest is an incident that can hinder the fairness of the trial and shake the trust in the entire judicial system, and it is by no means a minor incident. It affects the interests of many citizens who use the judicial system, so the social significance of reporting it is great. Therefore, the facts related to the arrest in this case are facts related to the public interest, and the reporting was done solely for the purpose of public benefit.

When considering whether it is always permissible to report personal information such as the suspect’s name, age, occupation, and part of the address, along with the fact of the arrest, in crime reporting articles, it is true, as the appellant argues, that the presumption of innocence applies to the arrested suspect. Considering this, depending on the content of the suspected facts in each case, the status and attributes of the suspect, and other specific circumstances, the demand for privacy protection may outweigh the public interest in the above sense, and crime reporting that includes personal information such as the real name at the suspect stage may constitute defamation or illegal invasion of privacy.

Tokyo High Court Judgment, March 9, 2016 (Gregorian calendar year)

However, in the case of this arrest, the suspected facts are by no means minor, and the social significance of reporting them is recognized as great. Therefore, even considering that the appellant is at the stage of being a suspect who has been arrested and is a general private individual, reporting including the appellant’s name is recognized as reporting facts related to public interest, and privacy infringement was not recognized.

Furthermore, the damages to be paid to the Mainichi Newspaper have been increased to 1.1 million yen.

The man appealed to the Supreme Court, dissatisfied with this decision. However, on September 13, 2016 (Gregorian calendar year), the Third Petty Bench of the Supreme Court dismissed the appeal, and the judgment of the Tokyo High Court in the second instance was finalized.

Summary: Tokyo High Court Weighs Privacy Over Public Interest in Real-Name Crime Reporting

The Tokyo High Court has pointed out that if the demand for privacy protection outweighs the public interest, crime reports containing personal information such as real names at the suspect stage could potentially constitute defamation or illegal invasion of privacy. However, it was determined that this case does not fall under that category.

However, this case law does not specifically point out when real-name reporting becomes illegal. We are waiting for the accumulation of case law.

Our Firm’s Approach

In the case we introduced, the conclusion was divided. Dealing with defamation requires a high level of specialized knowledge. Furthermore, if left unattended, the information can spread, potentially leading to further damage.

However, our firm, Fact Monolith Law Office, is a law firm with high expertise in both IT, particularly the internet, and law.

In recent years, information related to online defamation and slander, known as “digital tattoos,” has caused serious damage. Our firm offers solutions to combat these “digital tattoos.” Details are provided in the article below.