Is it Possible to Erase Arrest Records Related to Wrongful Arrests?

Many news sites, including newspapers, frequently report on the arrest of individuals. However, follow-up news about whether the person was subsequently indicted or convicted in court is often not published. This poses a serious problem for those who have been arrested. In other words, even in cases where:

• The person was indeed arrested, but it was a clear case of mistaken arrest and they were not indicted
• The person was indeed arrested, but ultimately not indicted due to insufficient suspicion
• The person was arrested and indicted, but it was proven in court that it was a case of mistaken arrest, and they were acquitted

There are cases where:

1. The news at the time of arrest is posted on the internet
2. It is then reposted on bulletin board sites like 5chan and 2chan, personal blogs, etc.
3. Even at the point of non-prosecution or acquittal, no corrections are made and it remains on the internet

As a result, even if it was a case of mistaken arrest, the fact that the person was “arrested” continues to remain on the internet, leading people who see it to think, “That person committed a crime.” For example, if an arrest article like the one mentioned above comes up in a name search, it can cause significant disadvantages in situations such as job changes for general employees, contract conclusion for business alliances for corporate managers, and fundraising situations.

So, is it possible to delete internet articles related to the arrest record of a mistaken arrest?

Is it Possible to Remove Arrest Records?

When considering this issue, it is first necessary to understand the general concept of removing arrest records, whether it is a case of mistaken arrest or if the individual was ultimately found guilty.

The fact that an individual has been arrested is a matter of privacy for that person. The basic principles are as follows:

1. Information about an arrest record is related to the individual’s privacy
2. However, privacy is not an unlimited right, and if it is public information, it is inevitable that it will be subject to certain restrictions
3. Nevertheless, it is questionable whether there is a need to post the arrest record on the internet with the real name, especially in the case of minor crimes
4. In particular, if a certain period of time has passed since the arrest, the necessity mentioned above may have already been lost

Case law refers to the privacy related to arrest records and criminal records as the “interest in not being indiscriminately publicized about criminal records, etc.”

For an explanation on the issue of “removal of arrest records” and the “passage of time since the arrest”, please refer to the following article.

https://monolith.law/reputation/necessaryperiod-of-deletion-arrestarticle[ja]

How Should We Consider Cases of Wrongful Arrest?

Consideration Factors for the “Right Not to Have Criminal Records Unnecessarily Disclosed”

In the context of deleting arrest records and privacy infringement, case law considers the following factors for the “right not to have criminal records unnecessarily disclosed”:

1. Matters related to the attributes of the person in question
2. Matters related to the content of the incident in question
3. Matters related to the purpose and significance of disclosure

Regarding this point, we have explained in detail in the following article as a general theory on the deletion of arrest records.

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

In the case of wrongful arrest, the particular issue would be the third point. In conclusion, since the person has not committed a crime, the question is whether there is any significance in disclosing the fact that “the person was arrested”.

What about Cases of Insufficient Suspicion or Non-Prosecution Due to Settlement?

However, in clear cases of wrongful arrest, one might say that “there is absolutely no significance in disclosure”. But in cases where non-prosecution has been decided due to insufficient suspicion or a settlement has already been reached, it may not be possible to say that “there is clearly no significance in disclosure”. In such cases, how convincingly one can argue that “there is no significance in disclosure in the specific case at hand” in situations such as deletion through out-of-court negotiations or provisional dispositions, may be a deciding factor in the outcome.

Can We Always Say There is No “Significance in Disclosure” in Cases of Wrongful Arrest?

Furthermore, as far as our firm is aware, there are no court cases that delve deeply into this point. Even in the case of a “wrongful arrest” in the full sense of the term, it is difficult to say whether the “significance” in the third point is always completely absent.

For example, in the case of so-called accomplices, there are cases where one has ended up being involved in only a part of the criminal act by the main offender due to a lack of intent. To put it extremely, consider the case of a shop owner who sold a Japanese sword to a murderer.

1. The fact that the shop owner was arrested as an accomplice
2. Even if it is later revealed that the shop owner had “no knowledge of how the Japanese sword was going to be used”, and the arrest was a mistake
3. The privacy infringement may be denied for the reason that “there is significance in disclosing where the Japanese sword was purchased”

Such cases seem to be theoretically possible.

Does Publishing a False Arrest Record Not Constitute Defamation?

As mentioned above, the issue of false arrest records is a matter of ‘privacy’. The current view of the Supreme Court of Japan is that this issue should be considered under the keyword of ‘the interest of not having one’s criminal record etc. indiscriminately publicized’.

Deletion of False Arrest Records is Generally Accepted

Even with this perspective, there are not many serious issues in practice. Common sense dictates that it is ‘harsh’ for a person who has been falsely arrested to request the deletion of their arrest record, only to have it denied. This is because courts often allow the deletion of such records. The example of the Japanese sword mentioned above is merely a ‘fear’ that ‘such a case might occur in the abstract’.

The deletion of an article can be achieved quickly through a ‘provisional disposition’, rather than a lawsuit, even if negotiations outside of court fail. We have explained this in detail in the article below.

https://monolith.law/reputation/provisional-disposition[ja]

As of the time of writing this article, all the provisional disposition cases involving false arrest records that our firm has handled have been granted deletion.

There is a Possibility of Losing in a Comprehensive Consideration

However, the above perspective ultimately suggests that:

1. Whether it’s a case of false arrest or conviction, the deletion of an arrest record is a privacy issue.
2. In cases of privacy infringement, a conclusion should be reached by comprehensively considering various elements.
3. In the case of false arrests, there are many cases where the significance of publicizing is non-existent/slight, and as a result, many cases are granted deletion.

Therefore, depending on the other elements considered ‘comprehensively’, there is a possibility of losing. In that sense, it is somewhat of an ‘analog’ judgment. The statement that ‘all the provisional disposition cases involving false arrest records that our firm has handled have been granted deletion’ is only valid ‘as of the time of writing this article’. That’s why, like the example of the Japanese sword mentioned above, there is a ‘fear’ that ‘such a case might occur in the abstract’.

However, when a person is falsely arrested, the person has no ‘fault’. Despite this, the situation where the arrest record of a false arrest continues to remain on the internet is hard to accept in any sense.

The Essence of the Problem is Being Misinterpreted as Having Committed a Crime

The main reason why it is ‘hard to accept’ for the person that the arrest record of a false arrest continues to remain on the internet is, after all, the fact that people who read about the ‘fact of arrest’, the arrest record remaining on the internet, will think that the person committed a crime. It is often said that the conviction rate in Japanese criminal trials is 99.9%, and at least in the perception of a citizen, if a person is ‘arrested’, they will ‘eventually be prosecuted’, and ultimately, if a person is ‘arrested’, the impression is that ‘the person committed a crime’. This is not so much a ‘privacy’ issue as it is purely a problem of:

1. Being written about as having committed a crime (which can only be read as such), despite not having committed a crime.

This is the issue.

Social Disadvantages Caused by False Facts: A Defamation Issue

Legally, the issue of suffering social disadvantages due to false facts is categorized as defamation. In simple terms, defamation occurs when:

• A specific matter (including the fact that “a person was arrested”) is stated,
• It results in social disadvantages for that person, and
• The fact is not true, but false.

We explain this in detail in the following article.

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

If Defamation is Established, Removal is Assured

Defamation is established, in a sense, as a “digital” judgment, clearly and without the need for “comprehensive consideration,” as long as the above conditions are met. Therefore, if you can treat the arrest record of a wrongful arrest as a defamation issue, there is no room for it to be deemed “not illegal, even if the arrest record of a wrongful arrest is posted, after comprehensive consideration.”

At the level of out-of-court negotiations, there are actual cases where removal is granted based on the above logic. However, as far as our firm is aware, there have been no cases where such logic has been accepted in court or provisional dispositions. The court:

1. Does not say that the person committed a crime just because they were arrested,
2. Is dubious whether the information is socially disadvantageous for the person in the first place, and
3. Above all, the fact that “the person was arrested” is true, so it is “true.”

It can be said that the court makes such judgments.

The Arrest Record of a Wrongful Arrest Should Always Be Removed

However, even if it turns out to be a wrongful arrest, the fact that the arrest record remains on the internet is clearly disadvantageous for both corporate executives and salaried workers. The reason is that the reader interprets it as “the person committed a crime.” In this sense, this is precisely a “digital tattoo” issue.

https://monolith.law/reputation/nhkdrama-degitaltatoo-01[ja]

It seems that there is a problem with the current court operation that treats the arrest record of a wrongful arrest as a “privacy issue.”

Summary

Having a record of a wrongful arrest persist on the internet can be unbearable. Even if this is considered a violation of the ‘interest of not being indiscriminately publicized for past criminal records’ and, more broadly, an infringement of privacy, it is believed that the chances of successful removal are very high if you seek the help of a lawyer who is proficient in online reputation damage control.

However, our firm believes that we should strive for a society where removal is not just ‘highly likely,’ but ‘always granted.’