What are the Requirements for Defamation Involving Expressions Containing Opinions or Criticisms?

In the past, perpetrators of defamation were typically mass media outlets with the power to disseminate information, such as newspapers and television, or they were celebrities. However, with the development of the internet and the ability for anyone to broadcast information to an unspecified number of people through bulletin boards and social networking sites, the expansion of the field of expression has created the possibility that anyone could become a victim of defamation.

Careless posts could potentially make you a perpetrator of defamation. Here, we will discuss the requirements for being charged with defamation, with which includes opinions or reviews, also known as opinion-review type defamation.

Defamation through Expression Including Opinions or Critiques

In Japanese criminal law, the crime of defamation, as stipulated in Article 230, requires the indication of facts, and cannot be established without demonstrating specific facts (matters that can be determined by evidence, etc.). However, the requirements for civil defamation are not clearly defined.

1. A person who defames another person by making allegations in public, regardless of whether such facts are true or false, is punished by imprisonment or imprisonment without work for not more than 3 years or a fine of not more than 500,000 yen.

Japanese Criminal Code Article 230

The court may order a person that has defamed another person to take appropriate measures to restore the reputation of the victim in lieu of or in addition to compensation for loss or damage, at the request of the victim.

Japanese Civil Code Article 723

Regarding this point, the precedent states,

The tort of defamation can be established if the expression in question lowers the objective evaluation received from society regarding a person’s personality, virtue, reputation, credit, etc., regardless of whether it indicates a fact or expresses an opinion or critique.

Supreme Court Judgment, September 9, 1997 (Heisei 9)

Thus, it is stated that defamation can be charged with even by opinions or critiques.

In other words,

1. The so-called “criminal defamation” cases involve stating specific facts, which is also defamation (infringement of the right to reputation) in civil law.
2. However, defamation by opinions or critiques, which does not constitute defamation in criminal law (“opinion-critique type defamation”), is regarded as defamation (infringement of the reputational right) in civil law.

Therefore, in civil law, if an expression lowers a person’s social evaluation based on the general public’s perception, regardless of whether it indicates a fact or expresses an opinion or critique, defamation can be established. Thus, when examining whether defamation has occurred, it is unnecessary to distinguish between the indication of facts and the expression of opinions or critiques.

However, the requirements for exemption differ between the indication of facts and the expression of opinions or critiques. Therefore, in situations where exemption is being considered, the distinction between them becomes meaningful and can significantly influence the conclusion as to whether legal liability for defamation arises.

As for defamation as a tort under civil law, the Civil Code allows for measures to restore reputation in lieu of or in addition to damages.

Exemption Requirements in Defamation by Statement of Fact

In cases of defamation by statement of fact, if the following three requirements are met, the illegality is denied, and the defamation is exempted.

1. It indicates a fact related to public interests (Publicity)
2. It is solely for the purpose of public benefit (Public Benefit)
3. The fact indicated is proven to be true (Truthfulness) or there are reasonable grounds to believe that the fact is true (Reasonableness)

Article 230-2 of the Japanese Penal Code mentions “Publicity”, “Public Benefit”, and “Truthfulness”, with “Reasonableness” added, but there is a precedent that even if it is a defamatory expression, if the above requirements are met, neither criminal nor civil liability will be incurred.

Regarding “Reasonableness”, “reasonable grounds to believe that the fact is true” requires clear evidence. The Supreme Court judgment of September 9, 1997 (Heisei 9), which was mentioned earlier, is the appeal trial of the “News Paper Fuji Los Doubt Incident”, states that “Even if the suspicion that a specific person committed a crime was widely known in society due to repeated reports in newspapers, etc., it cannot be said that there were reasonable grounds to believe that the fact of the crime related to the right suspicion actually existed from this fact.” Caution is required as just only saying “It was said on TV” or “It was written in a book” would not be applied nor exempted.

Exemption Requirements in Defamation by Opinion or Critique

In cases of defamation by opinion or critique, if the following four requirements are met, the illegality is denied, and the defamation is exempted.

1. The opinion or critique pertains to matters of public interest (Publicity)
2. The purpose of the opinion or critique is solely to serve the public interest (Public Benefit)
3. The underlying facts are proven to be true (Truthfulness) or there are reasonable grounds to believe that the facts are true (Reasonableness)
4. The content does not exceed the bounds of opinion or critique, such as personal attacks

The concepts of requirements 1 to 3 are similar to those of defamation by factual allegation, but for requirement 4, the content and persistence of the expression method, the attributes of the victim side, etc. are considered in the judgment.

Therefore, compared to ordinary defamation, defamation by opinion or critique is established when it “exceeds the bounds of opinion or critique”.

Is the Expression a Statement of Fact or an Opinion/Critique?

A, a chain of cram schools, filed a defamation lawsuit at the Tokyo District Court regarding a post made by C, a parent whose child attends B cram school, a subsidiary of A, on a bulletin board.

D, the principal of B cram school, was arrested for giving money to a high school girl he met on a dating site, making her pose indecently, and taking obscene pictures. He confessed to 300 similar offenses. Upon hearing this news, C posted comments such as “D might have committed indecent acts on students at B cram school” and “There is a possibility that other employees of B cram school are also committing indecent acts on students”.

During this trial, D’s criminal trial took place, and D was found guilty of violating the Japanese Child Pornography Act. As a result, the premise that D’s actions actually occurred was proven. Also, since this is about a criminal act that caused a public uproar, both public interest and public benefit are recognized.

Therefore, a big issue was whether C’s expression on the bulletin board was a statement of fact or an opinion or critique. In response to this, the Tokyo District Court stated that if one understands based on the normal attention and reading of general viewers, that this post would not be judged as “indicating the fact that D and other employees are committing additional indecent-related offenses”.

Given the fact that the plaintiff, while being in a position to provide learning guidance to students of the same age as this case, did not notice D’s crime, which was reported to have admitted to as many as 300 additional offenses, and continued to employ him as a regular employee, let alone placing him in the position of principal, it should be understood as an opinion that there might be a possibility of additional offenses by D or other employees under such a guidance and supervision system, and it is a critique that severely condemns and questions the lack of awareness as an educational institution that takes care of and nurtures students, the laxity of employee education and management supervision as an employer of the plaintiff, and the question of maintaining internal discipline, and therefore, it is not a statement of fact.

Tokyo District Court, November 25, 2011 (2011)

Thus, the court ruled that C’s expression on the bulletin board was an opinion or critique.

Whether it Exceeds the Scope of Opinion or Criticism

The final requirement to consider was whether the content in question had “exceeded the scope of opinion or criticism, such as personal attacks”. This became an issue due to the extreme nature of the expressions used on C’s bulletin board. The severity of these expressions raised the question of whether they could be exempted from liability.

The Tokyo District Court ruled that the expressions had not yet exceeded the scope of opinion or criticism, and thus exempted C from liability. Despite the harsh and extreme criticism by C, the court noted that the incident caused by D had a significant social impact, causing great unrest and indignation in society. Despite this, there was no disclosure or explanation of the facts from A. Therefore, the court ruled that C’s criticism still fell within the scope of legitimate opinion or criticism and did not constitute an unfair attack, thus granting exemption.

In this sense, it is important to note that not all harsh and critical writings at the same level as C’s posts will necessarily be exempted. The decision is always made comprehensively based on the overall circumstances of the case, and whether exemption is granted depends on the specific facts.

It is common for users interested in social issues to post harsh and aggressive opinions and criticisms on the internet, which can lead to online defamation. Therefore, this case is noteworthy as it relates to the balance between freedom of expression and the right to reputation in such situations.

Summary

As discussed in this article, the legal structure of opinion-based defamation, which is difficult to argue as stating specific facts regardless of how it is structured, is often considered in defamation cases to assert that “defamation is still established”. The structure is as follows;

1. Basically, it is sufficient to claim that the defamatory expression states specific facts and to assert defamation (infringement of honor).
2. However, in cases where the expression is abstract or similar to an “impression” and it is difficult to say that it states specific facts, it is not possible to use the structure of 1, so it is claimed to be opinion-based defamation.
3. However, if you claim that it is opinion-based defamation, it is legal unless it “deviates from the realm of opinion or criticism”, so the hurdle is raised in that sense.

In terms of practical sense, the level of 1 above can change the conclusion depending on whether a lawyer properly constructs the argument. For example, the expression “black company” was also viewed as “nothing more than the opinion of employees towards the company, not a specific fact (therefore, only the problem of opinion-based defamation arises)”, but our firm has actually won a judgment on the premise that the expression “even the inside is black” is a specific fact. This is an example of getting the court to recognize an interpretation based on the content of other responses on the bulletin board, and it was a case where it was necessary to argue that “the content of other responses should be considered”.

Opinion-based defamation, as mentioned in 2 above, is a legal structure that should be claimed as a “last resort” in cases where it is “difficult to say” that it is a specific fact, and it requires know-how and experience to make such judgments appropriately under specific cases. This is the practical sense.