Defamation by Email and the Possibility of Propagation

Regarding defamation on the internet, court precedents have been accumulated mainly around postings on bulletin boards and SNS, or exchanges of messages. Due to the nature of emails, which are usually sent one-to-one, it may seem that defamation does not occur. This is because, even under the Japanese Civil Code, the essence of defamation as a tort is a decrease in social evaluation. However, the concept of “society” includes an unspecified or large number of people, and it is difficult to say that social evaluation has decreased with statements to a specific few, as they do not meet the requirement of “publicity”. Therefore, when trouble occurs with emails, privacy infringement often becomes the point of contention.

https://monolith.law/reputation/defamation[ja]

However, it does not mean that defamation will never be established. For example, if you send an email defaming others to a large number of people, it is natural that publicity will be recognized.

Defamation by Email to Multiple Recipients

A case occurred where the defendant was sued for damages for sending an email containing false facts about the plaintiff to an email address that could be read by employees and executives of a corporate group, including the company where the plaintiff worked.

The defendant, who was the head of the transportation department, sent an email to an address used for complaints and requests to the company, alleging problematic behavior by the plaintiff, who was a director of the transportation company □□ Group. The email contained rumors such as “The plaintiff was late and the crew had to wait for two hours from the morning and had to listen to a salary explanation meeting while smelling of alcohol,” and internal testimonies such as “You are famous for being sloppy with alcohol. (omitted) Even when an accident report came in, you just spat out ‘You idiot!’ and went into a second party at a cabaret club? It seems you were touching a girl’s breasts with a red face. You’re vulgar, old man” and “Did you get the company to pay for your villa? Old man, are you a sokaiya (corporate blackmailer)?” This email was automatically distributed to at least about 150 employees and executives.

In a civil trial after the defendant had already been fined in a criminal case, the court first recognized the public nature of the case, stating, “Since it was automatically distributed to at least about 150 employees and executives and could be freely read, it can be recognized that the plaintiff publicly revealed the facts.” The court then stated that while some of the information was true, much of it was hearsay and the defendant did not clearly specify who had made such statements, making many of the defendant’s statements unreliable.

The email in question was sent to at least about 150 employees and executives of the □□ Group, and it is presumed that a considerable number of employees and executives read the email, causing significant mental distress to the plaintiff.
Furthermore, the defendant stated that the purpose of sending the email was to provoke discussion within the company about the plaintiff’s problematic behavior and to correct it. However, this purpose could have been easily achieved by means other than sending an email to an address that could be read by many employees and executives, such as reporting or consulting with the representatives or executives of the □□ Group, which would have had less impact on the plaintiff’s social reputation and the scope of its influence. Nevertheless, the fact that the defendant chose to send an email so casually indicates that his behavior was malicious.

Tokyo District Court, February 13, 2017 (2017)

The court recognized defamation and ordered the defendant to pay 800,000 yen in compensation for emotional distress. It is an inevitable result, as the defendant publicly revealed facts to about 150 people via email, lowering the plaintiff’s social reputation.

However, even if the email is not sent to multiple people, defamation by email can still occur. Even if the communication is to a specific few, if there is a possibility of propagation to unspecified or multiple people, it can be said to have been done “publicly,” and can potentially be considered defamation.

https://monolith.law/reputation/publicity-and-propagation-potential-in-defamation[ja]

Here lies the uniqueness of email in the internet age. Unlike private letters, emails can be viewed by an unspecified number of people instantly through “forwarding.” It is easy to imagine that forwarding can continue for matters of significant interest. Also, we must not forget about mailing lists.
Even if you feel safe because it’s an email, even if it’s sent to one person or a few people, if it’s considered to have propagation potential, public nature can be recognized.

Defamation and Emails Sent to Specific Acquaintances

In a separate article on our site titled “A Lawyer Explains Email and Privacy Infringement,” we discussed a case where an employee of a life insurance company, C, sent an email to a third party, B, containing personal information about an acquaintance, A. This information, which C had learned when A consulted him about insurance enrollment, revealed that A had been certified as a Level 3 mental disability. The court had to decide whether this act constituted defamation and an invasion of privacy. In this case, the court considered the fact that the plaintiff had previously suffered from depression or mental illness and had been certified as a Level 3 mental disability. The court also considered the content of six emails sent to B, which described A as a “net-dependent person who cannot adapt to society” and a “person lacking common sense”.

Because these emails were only sent to a specific acquaintance and were not made available for reading by a large number of third parties other than the appellant and the appellee, it cannot be said that the sending of the above-mentioned emails by the appellee immediately lowered the objective social evaluation of the appellant.

Tokyo District Court, November 6, 2009 (2009)

The court did not recognize the public nature of the emails and therefore did not acknowledge defamation. In cases of slander via email, it can often be considered as being sent to a specific few if the potential for propagation is not considered. However, this is not always the case.

https://monolith.law/reputation/mail-privacy-invasion[ja]

Sending to a Mailing List

The plaintiff, an employee of the same company, and A entered into an adulterous relationship. In July 2013, A admitted to and apologized for the affair with the plaintiff, paid 3 million yen in consolation money to the defendant, who was the plaintiff’s wife, and entered into a settlement agreement promising to have no further personal contact with the plaintiff. Eventually, the plaintiff and the defendant divorced by mutual agreement in December of the same year. However, the day after the divorce, the defendant sent an email to the company’s department head, division head, and general affairs department, accusing the plaintiff of having an affair with a company employee. She then sent two more emails to the general affairs department’s recruitment group mailing list, criticizing the plaintiff.

Each email contained the following:

1. The plaintiff had an affair with a coworker 20 years his junior despite having a wife and child.
2. The plaintiff tried to drive the defendant out of the house by claiming she was violent while he himself was having an affair.
3. The plaintiff injured the defendant’s left arm in a struggle for evidence when the affair was discovered.

The court recognized these as factors that could lower the plaintiff’s social reputation.

On the other hand, the court ruled that the facts stated in the emails significantly hurt the feelings of the defendant and their children, violated social ethics, and constituted a tort against the defendant. Therefore, it was considered socially acceptable for the defendant to consult with her superiors about the plaintiff’s adulterous behavior within the company and to seek guidance and supervision for the defendant. However, the court had to rule that the emails constituted a tort because they were sent to unspecified individuals within the company after the divorce and the settlement agreement with C.

“Emails are easy to forward and are likely to be stored in an accessible state for a considerable period of time. Therefore, by sending emails 1 and 3 to multiple addresses within the company, including the mailing list, the defendant made the facts that could lower the plaintiff’s social reputation available for viewing by unspecified individuals within the company.”

Tokyo District Court, December 9, 2014 (2014)

The court ordered the defendant to pay 450,000 yen in consolation money and 45,000 yen in attorney’s fees, for a total of 495,000 yen.

It would have been acceptable if she had consulted with specific individuals within the company. However, sending an email to a mailing list could be interpreted as sending it to an unspecified number of people. The term “propagation potential” is not used, but it can be understood in the same way.

Case Recognizing the Possibility of Propagation

There was a case where the plaintiffs claimed that their reputation was damaged due to an email sent by the defendant companies to their 90 employees, stating that the plaintiffs had engaged in illegal poaching activities when they resigned from their director positions at the defendant companies. The plaintiffs sought joint and several payments for damages based on tort.

The court ruled that the part of the email that indicated the plaintiffs’ actions constituted a breach of trust or a special breach of trust would lower their social evaluation. The court recognized that the act of sending the email in question pertained to facts related to public interests and was done solely for the purpose of public benefit. However, for some parts, it could not be said that there was proof of truth, nor could it be said that the defendant companies had reasonable grounds to believe it to be true. As such, the court awarded the plaintiffs 500,000 yen each in damages and 50,000 yen each in attorney fees from the two defendant companies, partially accepting the claim. In the judgment, the court stated:

The defendants argue that the email in question was sent only to specific individuals, and that the contents of the email are not in a state where an unspecified number of people can recognize them, so none of the parts indicated in the email would lower the plaintiffs’ social evaluation.
However, the email in question was sent to approximately 90 employees of the company where the plaintiff is employed and the defendant Y2 company, and the number is by no means small. Considering the possibility of propagation, it is fully conceivable that the contents of the email can be transmitted to an unspecified number of people. Therefore, it cannot be said that the plaintiffs’ social evaluation has not been lowered just because the email was sent only to specific individuals, and the above argument of the defendants cannot be adopted.

Tokyo District Court, November 11, 2014 (2014)

It is hard to say that approximately 90 people is a small number, but if you consider the possibility of propagation, “it is fully conceivable that it can be transmitted to an unspecified number of people”.

Summary

In all the cases discussed in this article, the identity of the poster was known, and except for the case of “defamation through an email sent to a specific acquaintance”, these were exceptional cases where the potential for propagation was recognized. In general, when malicious messages are sent via email, it is often the case that the identity of the poster is unknown or the potential for propagation cannot be affirmed. For general cases, please refer to the article below on our site.

https://monolith.law/reputation/email-sender-identification[ja]

However, it is important not to forget that even if it is a private message, making statements that infringe on the honor of others casually via email can lead to defamation charges. The same level of caution that would naturally be exercised on social media should be applied, even when sending an email to a specific individual.