Reposting, Linking, and Defamation on 2channel

Not only on websites and blogs, but also on bulletin boards, it is common to reprint other people’s posts or post links. This may be for various reasons, such as making the articles you have posted easier to understand, or wanting others to know about articles you think are good.

Could such casual reprinting and linking be subject to defamation?

2channel is Japan’s largest anonymous bulletin board, but as it grew, various people began to participate, and many problems arose.

Reprinting and linking are also issues that have been contested in court using 2channel as the venue.

Does Reposting Constitute Defamation?

The issue of reposting became a problem in a court case where it was disputed whether an anonymous post that reposted a defamatory article from an internet bulletin board or a book onto 2channel (a Japanese textboard) could be considered defamation, even though it was a repost.

A Japanese man living overseas sued for disclosure of information to identify the poster, after articles and posts suggesting his involvement in illegal international money transfers and money laundering were reposted on 2channel.

In the first trial, the Tokyo District Court stated regarding the anonymous post that reposted the defamatory language:

“The plaintiff argues that each of the articles in question makes it easier to reach a document that lowers the plaintiff’s social reputation. Since Article 3, to which a hyperlink is set in each of the articles in question, can be said to be an article that lowers the plaintiff’s social reputation, it can be said that each of the articles in question makes it easier to reach a document that lowers the plaintiff’s social reputation. However, even if each of the articles in question makes it easier to reach Article 3, it cannot be said that each of the articles in question itself lowers the plaintiff’s social reputation.”
Tokyo District Court, December 19, 2011 (Heisei 23) Judgment

Thus, the court did not grant the request for disclosure of sender information.

In other words, the court acknowledged that it “facilitates access” to articles containing defamatory expressions, but it could not equate Article 3 with the contents of Articles 1 and 2, and ruled that each article alone does not lower the plaintiff’s social reputation.

When Linking Can Constitute Defamation

In contrast, the appellate court ruling presented a different judgment from the first instance.

The Tokyo High Court stated that while Articles 1 and 2, and also Article 3, do not defame the plaintiff’s reputation in themselves, if the three articles are read together, they give the impression that the plaintiff committed sexual harassment during his student days at P University. The court stated,

“In order to determine whether the articles in question exceed the socially acceptable limit of defamation or insult, it is necessary to consider not only the articles themselves but also the circumstances under which they were posted. Since hyperlinks are set up and displayed in each of the articles, allowing readers to view the detailed content of the linked articles, it is easy to imagine that those who view the articles will click on the hyperlinks and read Article 3. Therefore, it can be recognized that the person who posted the articles intentionally set up and displayed hyperlinks to Article 3, incorporating it into the articles.”

Tokyo High Court, April 18, 2012 (2012) ruling

The court ruled that there was no evidence to support the appellant’s claim that he had committed sexual harassment as described in Article 3, and that there was no reason to deny illegality, thus recognizing defamation. Furthermore,

“Indeed, as the defendant argues, whether or not to visit the hyperlink destination varies from person to person. However, as mentioned above, it is easy to imagine that those who view the articles with hyperlinks may view the articles at the hyperlink destination, and the fact that the choice to visit the hyperlink destination varies from person to person does not mean that it is not common to read the articles at the hyperlink destination together.”

Ibid

The court recognized the “defamation by linking” in Articles 1 and 2 and ordered the disclosure of sender information for each article.

This ruling was the first to indicate that the contents of the thread articles with links and the thread articles at the link destination can be understood together and can be the subject of judgment.

While it was shown that the act of linking can constitute defamation, this ruling is considered rational and appropriate as a legal stance against the modern form of defamation through intentional use of the typical behavior expected of internet users interested in posted articles, namely, following links to access various information.

Recommendations on the Verification of the Provider Liability Limitation Act

In June 2011, the Ministry of Internal Affairs and Communications’ “Study Group on Various Issues Related to ICT Services from the User’s Perspective” compiled “Recommendations on the Verification of the Provider Liability Limitation Act (Japanese Provider Liability Limitation Act)”.

In this report, it is already stated that “although the distribution of information itself is not illegal, there are claims that the Provider Liability Limitation Act should also apply to cases where the rights of others are infringed by the distribution of information related to the said information.” It also states that “although the posted link information itself is not illegal, it could be a problem whether the link information itself should be subject to transmission prevention measures in cases where the information at the link destination infringes the rights of others.” The recommendations state:

“When the distribution of information at the link destination that infringes the rights of others and the distribution of link information are evaluated as a single entity with related jointness, the distribution of link information could be evaluated as a joint tort (in a broad sense) with the rights infringement act at the link destination, and could be subject to transmission prevention measures. On the other hand, if it cannot be evaluated in this way, it is highly likely that it will not be subject to transmission prevention measures.”

This “evaluation as a single entity with related jointness” is considered to be almost identical to “incorporated in the article” in the previous Tokyo High Court decision, but it seems that it is not easy to judge whether this is established or not.

In the future, it will be necessary to pay attention to what kind of precedents will be accumulated.

“These are merely reposts of the content of articles posted on already public internet bulletin boards or published books, and it cannot be said that they degrade the plaintiff’s social reputation more than the posting of these articles or the publication of the books. Therefore, it cannot be recognized that the plaintiff’s right to honor has been clearly violated by the posting of this information.”
Tokyo District Court, April 22, 2013 (2013)

And thus, the claim was dismissed.

In other words, the court judged that the post was merely a repost of the book or original article, and it did not further degrade the social reputation that the book or original article had already degraded.

This judgment is absolutely unacceptable.

If this judgment is accepted, once a post that degrades social reputation is made on the internet, even if the post is reposted afterwards and the damage is expanded, the person who reposted it will not be held responsible at all.

Moreover, those who repeatedly defame others on the internet often repost the same content on multiple threads and bulletin boards, hoping to create a flame war. Users, seeing the information being reposted repeatedly, may accept the content of the information as if it were true, and the information will spread.

Then, search sites like Google will start to display sites that defame the person at the top when searching for information about that person, and the defamatory articles will be seen by more and more people.

This judgment of the Tokyo District Court was overturned on appeal.

Reposting Can Lead to Defamation

The Tokyo High Court has recognized that reposted articles can present specific facts sufficient to lower one’s social reputation. These articles were either previously posted on a different bulletin board or published in a book. However, the court stated:

“It is unlikely that many of those who saw these articles on the website 2channel read the original articles of XX or the articles of □□ around the same time. The act of posting this information on the website 2channel is recognized as spreading the information more widely and further lowering the appellant’s social reputation.”

Tokyo High Court, September 6, 2013 (2013)

The court ordered the disclosure of the sender’s information to the intermediary provider.

Even just reposting can potentially lead to defamation. This is because it “spreads the information more widely and further lowers the appellant’s social reputation.” Be careful not to casually copy and paste defamatory articles onto bulletin boards or social networking sites.

What is a Link?

In English, the term “link” is used, which means “chain”, “connection”, or “association”.

On the web, it’s a mechanism that connects one page to another. Originally, it was called a “hyperlink”, but nowadays, it’s mostly abbreviated and referred to as a “link”.

By placing a link, you can directly access other pages. However, a link is considered a recommendation vote from the original page to the linked page, suggesting “it would be good to view this page”. Therefore, it is said that search engines use the number and quality of links to evaluate the linked page.

So, would the act of posting a link to a site that defames someone’s reputation be considered defamation?

https://monolith.law/Japanese reputation/defamation law

Linking and Defamation

On 2channel, Japan’s largest anonymous bulletin board, there are often disputes over whether posts are defamatory. Many of these disputes also revolve around whether linking to a defamatory site constitutes defamation, and these disputes often take place on 2channel.

As a precedent where a crime other than defamation was questioned for the act of linking, there is a Supreme Court decision on July 9, 2012 (Heisei 24). This decision recognized the establishment of the crime of public display of child pornography for the act of linking to a child pornography site.

It was determined that even indicating the location of child pornography that has already been publicly displayed by a third party as information is included in “publicly displayed”.

So, what about defamation? Does indicating the location of a post that constitutes defamation by a third party also constitute defamation?

In response to the claim that “linking to the subject made the existence of the article known to general readers and encouraged them to view it, thereby lowering the social evaluation of the subject”, it has been judged that “it cannot be said that the social evaluation of the plaintiffs was immediately lowered by linking” (Tokyo District Court, June 30, 2010 (Heisei 22) decision).

This is based on the judgment that the choice of whether or not to visit the link destination varies among individual users.

Does Linking Constitute Defamation?

In January 2011, a thread titled “P University” was created on 2channel, and Article 1 was posted. On the 24th, a thread titled “A’s (a monk working at R temple) Sexual Harassment” was created and Article 2 was posted. Each article had a link to “A (a monk of the Jodo Sect, Chiba District)” within the same 2channel. When you click on the link in Articles 1 and 2, Article 3 is displayed, which states that the plaintiff sexually harassed female club members when he was a student at P University.

The plaintiff requested the disclosure of the sender’s information in order to seek damages from the sender of each article. When the transit provider refused, the plaintiff filed a lawsuit. However, the Tokyo District Court, the court of first instance, dismissed the plaintiff’s claim. The court stated:

“The plaintiff argues that each of the articles in question makes it easier to reach a document that lowers the plaintiff’s social reputation. Since Article 3, to which a hyperlink is set in each of the articles in question, can be said to be an article that lowers the plaintiff’s social reputation, it can be said that each of the articles in question makes it easier to reach a document that lowers the plaintiff’s social reputation. However, even if each of the articles in question makes it easier to reach Article 3, it cannot be said that each of the articles in question itself lowers the plaintiff’s social reputation.”
Tokyo District Court, December 19, 2011 (Heisei 23) Judgment

Thus, the court did not grant the request for disclosure of sender information.

In other words, the court acknowledged that it “facilitates access” to articles containing defamatory expressions, but it could not equate Article 3 with the contents of Articles 1 and 2, and ruled that each article alone does not lower the plaintiff’s social reputation.

When Linking Can Constitute Defamation

In contrast, the appellate court ruling presented a different judgment from the first instance.

The Tokyo High Court stated that while Articles 1 and 2, and also Article 3, do not defame the plaintiff’s reputation in themselves, if the three articles are read together, they give the impression that the plaintiff committed sexual harassment during his student days at P University. The court stated,

“In order to determine whether the articles in question exceed the socially acceptable limit of defamation or insult, it is necessary to consider not only the articles themselves but also the circumstances under which they were posted. Since hyperlinks are set up and displayed in each of the articles, allowing readers to view the detailed content of the linked articles, it is easy to imagine that those who view the articles will click on the hyperlinks and read Article 3. Therefore, it can be recognized that the person who posted the articles intentionally set up and displayed hyperlinks to Article 3, incorporating it into the articles.”

Tokyo High Court, April 18, 2012 (2012) ruling

The court ruled that there was no evidence to support the appellant’s claim that he had committed sexual harassment as described in Article 3, and that there was no reason to deny illegality, thus recognizing defamation. Furthermore,

“Indeed, as the defendant argues, whether or not to visit the hyperlink destination varies from person to person. However, as mentioned above, it is easy to imagine that those who view the articles with hyperlinks may view the articles at the hyperlink destination, and the fact that the choice to visit the hyperlink destination varies from person to person does not mean that it is not common to read the articles at the hyperlink destination together.”

Ibid

The court recognized the “defamation by linking” in Articles 1 and 2 and ordered the disclosure of sender information for each article.

This ruling was the first to indicate that the contents of the thread articles with links and the thread articles at the link destination can be understood together and can be the subject of judgment.

While it was shown that the act of linking can constitute defamation, this ruling is considered rational and appropriate as a legal stance against the modern form of defamation through intentional use of the typical behavior expected of internet users interested in posted articles, namely, following links to access various information.

Recommendations on the Verification of the Provider Liability Limitation Act

In June 2011, the Ministry of Internal Affairs and Communications’ “Study Group on Various Issues Related to ICT Services from the User’s Perspective” compiled “Recommendations on the Verification of the Provider Liability Limitation Act (Japanese Provider Liability Limitation Act)”.

In this report, it is already stated that “although the distribution of information itself is not illegal, there are claims that the Provider Liability Limitation Act should also apply to cases where the rights of others are infringed by the distribution of information related to the said information.” It also states that “although the posted link information itself is not illegal, it could be a problem whether the link information itself should be subject to transmission prevention measures in cases where the information at the link destination infringes the rights of others.” The recommendations state:

“When the distribution of information at the link destination that infringes the rights of others and the distribution of link information are evaluated as a single entity with related jointness, the distribution of link information could be evaluated as a joint tort (in a broad sense) with the rights infringement act at the link destination, and could be subject to transmission prevention measures. On the other hand, if it cannot be evaluated in this way, it is highly likely that it will not be subject to transmission prevention measures.”

This “evaluation as a single entity with related jointness” is considered to be almost identical to “incorporated in the article” in the previous Tokyo High Court decision, but it seems that it is not easy to judge whether this is established or not.

In the future, it will be necessary to pay attention to what kind of precedents will be accumulated.

reputation/deletionrequest-for-2chand5ch