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What is 'Identifiability' in Cases of Defamation? A Lawyer Explains Recognized Cases


What is 'Identifiability' in Cases of Defamation? A Lawyer Explains Recognized Cases

When asserting defamation or slander in order to remove posts or to identify the poster, the issue at hand is whether ‘identifiability’ is recognized as a prerequisite.

So, what exactly is ‘identifiability’? In this article, we will explain in detail what ‘identifiability’ means in cases of defamation or slander, and under what circumstances ‘identifiability’ is recognized, using specific examples.

What is “Identifiability”

“Identifiability” refers to the ability to specify who the target of defamation is. This becomes an issue as a prerequisite for determining whether the social evaluation of “that person” has actually declined when claiming violations of personal rights such as defamation (infringement of the right to honor), insult (infringement of the sense of honor), and invasion of privacy.

Even if there is a post that could be considered as defamation, if it is not clear to other general readers whether the content of the post is talking about “yourself”, it cannot be said that the social evaluation has declined, and therefore, defamation is not established.

Therefore, in order for defamation and the like to be established, it is necessary that the identifiability of the person who is the subject of the expression and the person claiming the damage is recognized, which is an important issue that divides the conclusions of judgments and provisional dispositions.

As for insult (infringement of the sense of honor), the sense of honor is an internal issue of oneself, and it does not necessarily have anything to do with how it looks from a third party, so identifiability is not strictly necessary. However, it is said that at least an explanation of “being a victim oneself” is necessary.

Cases Where “Identifiability” is Recognized

Identifiability is easily recognized when real names are mentioned. However, even if a real name is not mentioned, if the person in question can be identified by other information, identifiability may be recognized, and there will be a possibility of defamation.

For example, consider a case where the following post is made on an electronic bulletin board.

“My colleague is embezzling company funds.”

The fact of embezzling company money clearly lowers a person’s social reputation, so if this is baseless, it infringes on the “my colleague’s” right to honor and feelings of honor.

However, if the poster is anonymous, it is unclear who “I” is, and it is conceivable that there are multiple colleagues, so it is unclear to the reader who “my colleague” refers to. Therefore, the possibility of identifying a specific person is not recognized, and defamation or infringement of honor does not occur.

However, in the case of the following post, there is a possibility of defamation.

“The sales manager of A Corporation is embezzling company funds.”

In this post, there is no mention of a real name. However, if there is only one sales manager at A Corporation, it is easy to imagine that this description refers to a specific person, so identifiability may be recognized.

In other words, in determining identifiability, the point is whether a “general viewer” who objectively views the post can identify the target. This is the same even if the target is a store or a company.

The “general viewer” mentioned here is considered to be someone who is participating in the discussion or knows the circumstances that are assumed. It is not simply a matter of judging whether it is identifiable or not based on the general public, but rather it should be judged according to social norms.

In extreme terms, identifiability is not recognized unless it is a famous person such as a politician or celebrity that most people know. (This point will also be explained in the case of “Fish Swimming in Stone”, a precedent where an unknown person was the model.)

Let’s explain when identifiability is recognized by looking at actual examples.

Possibility of Identification in Defamation Using Initials and Pseudonyms

Possibility of Identification in Defamation Using Initials and Pseudonyms

In electronic bulletin boards and the like, initials, pseudonyms, and euphemisms are often used, and it is not common for real names or company names to be written as they are. Even if posts are made using such initials or pseudonyms, there may be cases where identification is recognized if it can be objectively determined who the other party is.

There was a case where a member of the Nakano Ward Council, who thought he was referred to as “C” in a post on an electronic bulletin board stating “C, the secretary-general of the d party’s parliamentary group, engaged in prostitution at a sex shop while being a ward council member,” requested the disclosure of sender information from the Internet Service Provider (ISP).

In this case, it was not specified which ward the “ward council member” referred to, and who the “C” referred to by the initial, and the issue was whether there was a possibility of identification with the plaintiff (claimant).

On this point, the court affirmed the possibility of identification as follows:

“This bulletin board… is a bulletin board that aims to discuss ‘how to conceive, practice, and realize self-government, public affairs, and regional development’ for the purpose of ‘town development in Nakano Ward’ on the Internet by those related to residents of Nakano Ward and others.”

“Since this bulletin board is a bulletin board established for the purpose mentioned above regarding Nakano Ward politics, those who would view it are understood to be those who have an interest in Nakano Ward politics, and it is clear that the fact that the plaintiff is the secretary-general of the d party’s parliamentary group in the Nakano Ward Council is known to a considerable number of unspecified persons. Therefore, it is understood that ‘C councilor’ refers to the plaintiff is easily understood by ordinary readers of this bulletin board.”

Tokyo District Court, October 27, 2008 (Heisei 20)

The court, focusing on the fact that this bulletin board is viewed by a large number of unspecified persons interested in Nakano Ward politics, affirmed the possibility of identification, stating that it is easy to recognize that ‘C councilor’ in the post refers to the plaintiff, considering the understanding of those who read such a bulletin board.

In other words, the possibility of identification is recognized when it can be understood that the post is directed at a specific person, not by interpreting the meaning of the post as a single entity, but by considering the nature of the bulletin board and the understanding of those who read such a bulletin board.

Thus, even if initials or pseudonyms are used, there may be cases where the possibility of identification is affirmed by referring to other elements such as the nature of the bulletin board and the context of previous and subsequent posts.

Identifiability in Defamation Using Pen Names, Stage Names, and Pseudonyms

For identifiability to be recognized, it is necessary that the person being targeted can be specified. However, it is not always necessary to know their real name. If an author or performer uses a pen name or stage name that is widely known and easily recognizable, it may be deemed that the public’s opinion of them has diminished even if their real name is not known. This means that there is a possibility of defamatory remarks being made against them.

There was a case where it was an issue whether there was identifiability in defamation carried out using the pseudonym of a person who had been working under a pseudonym at a specific sex service establishment for five years.

Regarding this case, the court acknowledged the identifiability as follows:

“Even if the pseudonym is completely different from the real name, if it is socially established to a certain extent, it should be considered that the personal interests of the person using the pseudonym can be violated by posts associated with the pseudonym.”

“The plaintiff has been working under the pseudonym of B at store A for a total of about five years, and it is recognized that there is no one else working at the same store under the same pseudonym. … Since the above-mentioned pseudonym can be considered to be socially established to a certain extent as the plaintiff’s call sign, considering the context before and after, it is appropriate to recognize that the information 179, in this case, is a post about the plaintiff.”

Tokyo District Court, May 9, 2016 (Heisei 28)

In other words, even in defamation using an pseudonym, if the pseudonym is socially established to a certain extent and is recognized as referring to a specific person, identifiability can be recognized.

Just like in the case of initials or blank letters, even in the case of posts using an alias, there is a possibility that the person being targeted can be identified, so identifiability can be recognized and defamation can be established. It is not always necessary for the name listed to be the “real name” in order to say “an individual can be identified”.

Identifiability in Defamation by Fiction

In novels and other works of fiction, characters may be based on specific individuals. Even if a different name is given to the character, can the real person who served as the model be identified?

In defamation by fiction, two issues arise: ① whether identifiability is recognized when fiction and reality are mixed, and ② whether identifiability is recognized when an unknown person is the model.

When Fiction and Reality are Mixed

If the entire work of fiction is perceived by the general reader as a fiction created by the author, defamation against a real person, such as slander, will not be established (Tokyo District Court, May 19, 1995 (Heisei 7)). This is because if the reader perceives it as fiction, the information in the work is not recognized as a real event, and it cannot be said that the social evaluation of the real person is lowered by this.

On the other hand, even if fiction and reality are mixed, if the fictional part and the factual part cannot be distinguished, the reader may misunderstand that the actions of the personality in the work are the actual actions of the model. In such cases, the social evaluation of the person who served as the model may be lowered by the work of fiction, and defamation may be established.

In other words, regardless of whether the description is actually a fiction, if the general reader is in a situation where they recognize it as the actual behavior of the person who served as the model, the identifiability of the actual person who served as the model and the personality in the work will be recognized.

When an unknown Person is the Model

There was a case where a woman, who was a model for a novel called “Fish Swimming in Stone” featuring a Korean woman living in Japan with a large tumor on her face, sought damages and a publication ban on the grounds of privacy infringement.

In this case, one of the points of contention was whether identifiability could be recognized, as the woman (plaintiff, appellee) was not a celebrity, and the majority of general readers could not specifically identify that the personality in the work was based on her.

On this point, the court affirmed the identifiability in the second instance judgment as follows:

“The appellee’s attributes include being a Korean living in Japan until the fifth grade of elementary school, studying ceramics at the graduate school of Tokyo University of the Arts after graduating from a university in Korea, having a tumor on her face, undergoing 13 surgeries for the treatment of the right tumor from childhood to the age of 12, and having an experience of her father, a university professor, being arrested on suspicion of spying in Korea where he was lecturing, and then being released and returning to Korea with his family. These attributes of the appellee are the same as the attributes of “Park Rika” in the novel.”

“Given these attributes of the appellee, not only many students of T University and people who the appellee interacts with on a daily basis, but also acquaintances from her childhood can easily identify ‘Park Rika’ in the novel as the appellee. Therefore, the identifiability of ‘Park Rika’ in the novel and the appellee is affirmed.”

Tokyo High Court, February 15, 2001 (Heisei 13)

Thus, the Tokyo High Court affirmed the identifiability by stating that not “ordinary people” but “many students of T University and people who the appellee interacts with on a daily basis” and “acquaintances from her childhood” can easily identify that the character in the work is based on the appellee.

In other words, as mentioned above, if the situation is such that people who know the circumstances of the appellee (plaintiff) can easily identify, identifiability is affirmed. The appellants’ (the authors of the novel) argument that “the majority of general readers cannot know the attributes of the appellee, so it cannot be said that there is identifiability” was not accepted.

By the way, this case was about the infringement of the right to privacy, but it is considered that identifiability may be recognized for the same reasons in the judgment of identifiability in defamation or infringement of honor.

Possibility of Identification and Defamation Against VTubers and Anonymous Accounts

Possibility of identification against virtual entities such as VTubers

Activities on the internet, such as on social media, can be conducted under the name, appearance, and other settings of a virtual personality, without disclosing any information about the actual person (also referred to as the “person inside”) behind VTubers and anonymous accounts.

The issue with defamation against virtual entities is whether it can be considered as targeting the “person inside”. This is because if the defamation is solely against the character, it only harms the social reputation of the personality, an internet persona, and does not lower the social reputation of the “person inside”. Therefore, defamation against a specific individual does not occur.

In a precedent, a person who was active as a VTuber named “B” requested the disclosure of the sender’s information from the Internet Service Provider (ISP) on the grounds that a post on an electronic bulletin board, which critically commented on the internet broadcast conducted by “B”, including the upbringing environment, infringed on the privacy rights and honor feelings of the “person inside”.

In this case, the court made the following indication, recognizing the possibility of identification with the plaintiff, who is the “person inside”.

“Considering that the voice in ‘B’s’ video distribution is the plaintiff’s real voice, and the movements of the CG personality also reflect the plaintiff’s movements through motion capture, and that the video distribution and SNS posts as ‘B’ are not fictional content based on the character setting, but content related to events in the real life of the person playing the character, the activities of the VTuber ‘B’ are not just a CG character, but reflect the plaintiff’s personality.”

“Based on the ordinary attention and reading of general viewers, it is reasonable to recognize that each of the posts in this case criticizes the plaintiff’s own actions reflected in the distribution as ‘B’.”

Tokyo District Court, April 26, Reiwa 3 (2021)

In other words, even if it is not specifically known who the “person inside” is, if the character reflects the personality and behavior of the “person inside” and other circumstances are taken into account, it can be generally understood that the post directed at the character targets a specific “person inside”, defamation can be established.

Just like when using a pen name or nickname, if you are subject to social evaluation through activities using a virtual personality, your right to honor and feelings of honor will be protected in certain cases. Even if it is not specifically known to the general public who the “person inside” is, there can be cases where defamation is established.

In the increasingly popular metaverse, it is expected that more people will be active anonymously through avatars. Even for defamation against avatars in the metaverse, it is believed that the right to honor and feelings of honor of the person themselves can be protected to some extent, just like VTubers.

Identifiability in Cases of Individuals with the Same Name

Even if a real name is mentioned in a post, if there are multiple individuals with the same name, it cannot be said that the target is specifically identified, and defamation does not occur. However, if it is clear who among those with the same name the post refers to, identifiability may be recognized.

There was a case where the issue was whether the plaintiff could be identified from a post made with the title of “lawyer” attached to the target’s name, as there were two lawyers with the same name.

In this regard, the court, considering the timing of the post and the content of the posts before and after, objectively judged that there was a high probability that the target was the plaintiff, and recognized the identifiability (Tokyo High Court, March 12, 2015 (Heisei 27)).

Thus, even if there are several individuals with the same name who could be the target of defamation, if it can be objectively judged that it refers to a specific individual among them, considering other elements, identifiability can be recognized.

Conclusion: If you are troubled by defamation, consult a lawyer

Even if defamation is carried out without revealing the real name of the other party, there may be cases where defamation, infringement of honor, and invasion of privacy are established. As we have seen in specific examples, when judging the possibility of identification, not only the problematic description, but also other circumstances such as previous and subsequent posts and the nature of the bulletin board are considered individually and specifically.

It is often difficult to judge whether defamation, etc., is established when defamation is carried out without using a real name, so we recommend that you consult a lawyer who is strong in the problem of defamation on the Internet once.

Measures Provided by Our Firm

Monolith Law Office is a legal office with extensive experience in both IT, particularly the internet, and law. In recent years, information related to reputational damage and defamation spread on the internet has been causing serious harm as a “digital tattoo”. Our firm provides solutions for dealing with these “digital tattoos”. Details are provided in the article below.

Areas of expertise at Monolith Law Office: Digital Tattoo

Managing Attorney: Toki Kawase

The Editor in Chief: Managing Attorney: Toki Kawase

An expert in IT-related legal affairs in Japan who established MONOLITH LAW OFFICE and serves as its managing attorney. Formerly an IT engineer, he has been involved in the management of IT companies. Served as legal counsel to more than 100 companies, ranging from top-tier organizations to seed-stage Startups.

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