Disclosure Request Not Granted? Explaining the Requirements Based on Rejected Cases

When you suffer from defamation on the Internet, it is natural to want to claim damages from the poster for recovery. However, most posts on the Internet are made anonymously, so in order to negotiate or litigate for a claim for damages, you need to obtain information such as the poster’s address and name.

Therefore, you can use a procedure called “request for disclosure of sender information” to have the poster’s information disclosed. However, the requirements for whether this disclosure request is accepted or not are complex.

In this article, we will introduce the requirements for a request for disclosure of sender information to be accepted, and when it is not accepted, based on actual case examples.

Requirements for Disclosure of Sender Information

A request for disclosure of sender information is a procedure to request the disclosure of information such as the name and address of a person who has made illegal posts on the Internet, such as infringement of personal rights, from a provider. The legal basis for this is Article 5, Paragraph 1 of the Japanese Provider Liability Limitation Act, which sets out the requirements.

Those who claim that their rights have been infringed by the distribution of information through specific telecommunications can request the disclosure of sender information related to the infringement of such rights, which is held by the provider of specific telecommunications services using the specific telecommunications equipment used for such telecommunications. This applies to sender information other than specific sender information (sender information that is exclusively related to infringement-related communications as defined by the Ministry of Internal Affairs and Communications Ordinance. The same applies in this paragraph and in Paragraph 2 of Article 15.) when both of the following apply, and to specific sender information when all of the following apply.

Article 5, Paragraph 1 of the Japanese Provider Liability Limitation Act[ja]

If we break down this clause into its individual elements, we find:

1. There is distribution of information through specific telecommunications
2. The request comes from someone who claims their rights have been infringed
3. It is clear that the rights have been infringed
4. There is a legitimate reason to disclose the sender’s information
5. The request is made to the provider related to the disclosure
6. The information qualifies as sender information
7. The provider related to the disclosure holds the information to be disclosed

If these seven requirements are met, a request for disclosure of sender information can be granted.

Existence of Information Distribution via Specific Telecommunications

“Specific Telecommunications” is defined by Article 2, Paragraph 1 of the Japanese Provider Liability Limitation Act as “the transmission of telecommunications intended to be received by an unspecified number of people”.

In essence, this refers to anything on the internet that anyone can view (excluding things like television broadcasts). This also includes sites that can be viewed by logging in through user registration and the like. However, things like emails, chats, and newsletters, which involve “one-to-one” or “one-to-many” transmission, are not considered to be received by an unspecified number of people, and therefore do not fall under the category of Specific Telecommunications.

Claims Must Come from Those Who Allege Their Rights Have Been Infringed

The only individuals who can request disclosure through this procedure are those who allege that their own rights have been infringed. The term “infringed party” as used here includes not only individuals but also corporations and other entities.

The Clear Infringement of Rights (Obviousness of Rights Infringement)

“Obviousness” means not only that it is clear that your rights (which will be specifically mentioned later) have been infringed, but also that the claimant must prove that there are no circumstances suggesting the existence of a reason that would prevent the establishment of a tort. Compared to a claim for damages based on a general tort, in the case of a request for disclosure of sender information, the burden of proof is shifted from the poster to the claimant, making the requirements more stringent.

This is because a request for disclosure of sender information involves disclosing the privacy information of the poster, which can lead to a conflict between the poster’s privacy rights and freedom of expression. Therefore, the requirements are made stricter by shifting the burden of proof of the non-existence of illegality prevention reasons to the claimant’s side.

For more specific details on what we mean by “rights” in this context, please refer to this section of the article[ja].

There Must Be a Legitimate Reason to Disclose the Sender’s Information

This means that if the purpose is not to pursue legal liability (such as damages), there is a possibility that a request to disclose the sender’s information may be rejected. Pursuing legal liability is considered a “legitimate reason”.

However, those who request the disclosure of the sender’s information usually want to pursue some form of legal liability, so it is unlikely that such requests will be rejected.

On the other hand, if the requester intends to use the disclosure of the sender’s information to intrude on the sender’s home or expose the sender’s personal information on the internet, it is considered that there is no legitimate reason for the request, and it may be rejected. In other words, if there is a possibility that the sender’s reputation or peaceful life could be harmed, the request may not be granted due to the lack of a “legitimate reason”.

Actions Taken Against Disclosure-Related Service Providers

This refers to those who communicate using the aforementioned “Specific Telecommunications”, such as server providers, bulletin board administrators, and access providers, among others.

What Constitutes Sender Information

Sender information refers to information that leads to the identification of the sender, such as the sender’s name and address. This is defined by a Ministry of Internal Affairs and Communications ordinance as follows:

Reference: Ordinance Defining Sender Information under Article 4, Paragraph 1 of the Japanese Law Concerning Limitation of Liability for Damages of Specified Telecommunications Service Providers and Disclosure of Sender Information[ja]

The Disclosure Service Provider Holds the Information Subject to Disclosure

In essence, it is necessary that the provider has the authority to disclose the information subject to disclosure and is capable of executing the disclosure. For example, if it costs a significant amount to extract the information, or if the existence of the information cannot be confirmed in reality, it is considered that the provider does not hold the information.

Examples Where Clear Infringement of Rights is Not Recognized

From here, we will introduce some case examples where the clear infringement of rights was not recognized, or there was no legitimate reason for the request for disclosure of sender information, as explained above.

No Specific Facts Indicated

There was a case where a plaintiff, who operates a transportation and delivery business, claimed that his reputation was defamed by an article posted on the anonymous bulletin board “Bakusai.com”, and requested the transit provider to disclose the name or information related to the address of the poster.

The plaintiff argued that the comments on the bulletin board, “I was deceived and joined the company” and “Once I knew the inside of the company, I couldn’t quit,” indicated the fact that they were employing workers by telling them false working conditions.

The court stated that the phrase “I was deceived and joined the company” was “not clear who the subject or target of the deception was, and it cannot be immediately understood as the plaintiff claims.” Also, regarding the part “Once I knew the inside of the company, I couldn’t quit,” the court pointed out that “As for the ‘inside of the company,’ various things such as management conditions and human relationships can be assumed, and it cannot be said that there is a specific fact that lowers the plaintiff’s social evaluation due to the vague expression of the preceding article.”

Furthermore, considering that expressions like “I was deceived” are often used in a light sense without assuming illegality or legal responsibility in daily life, the court stated, “It cannot be said that there is a clear infringement of rights against the plaintiff.”

The plaintiff also argued that the comment “I have to work at the end of the year and the beginning of the year, I might die from overwork?! Can someone help me?” would cause a misunderstanding that the plaintiff is forcing workers to work in a harsh environment without giving them a break and causing them to die from overwork, thereby lowering the plaintiff’s social evaluation. However, the court stated,

“It does not mean that the plaintiff is violating labor-related laws or forcing an unacceptable working environment. There are workplaces in society in general where work must continue even at the end of the year and the beginning of the year, so the fact that it is such a workplace cannot be said to lower social evaluation.”

Tokyo District Court, October 14, 2015 (2015)

The court did not recognize the clear infringement of rights and dismissed the plaintiff’s claim.

Related article: A lawyer explains six cases where defamation is not recognized[ja]

No Circumstances Suggesting the Existence of Reasons to Prevent the Establishment of Illegality

There was a case where a plaintiff, a cosmetic surgery clinic in Kuwana City, Mie Prefecture, claimed that his reputation was defamed by a post on an online bulletin board, and made a request to the defendant, who manages and operates the electronic bulletin board, to disclose the sender’s information.

The defendant argued that “The information in this case provides information about the clinic, which performs surgical operations related to people’s lives and bodies, so it can be recognized as having publicness and public interest.” against the plaintiff’s claim that there are no reasons to prevent the establishment of illegality.

Furthermore, the defendant argued that “Dr. A, who serves as the director of the plaintiff, has received a warning from the b Medical Association for being late as an on-duty doctor, refusing medical treatment, and violating the obligation to ‘cultivate and maintain personality’ based on the professional guidelines for doctors. The description of the information in this case, which suggests that he has received advice due to trouble, is true in important parts.” “Even if the important parts of the information in this case are not true, it can be said that there are sufficient reasons to believe that they are true.”

In response to these arguments, the court stated,

“The information in this case points out problems with the clinic, which performs medical acts such as breast augmentation surgery, and raises awareness. Therefore, the act of sending this information can be recognized as being related to facts of public interest and is primarily for the purpose of public benefit. Also, Dr. A, who serves as the representative director of the plaintiff, received a warning from the b Medical Association on October 27, 2010, for being late as an on-duty doctor, refusing medical treatment, and violating the obligation to ‘cultivate and maintain personality’ based on the professional guidelines for doctors (premise fact (3)). Therefore, the fact that the information in this case indicates that there is trouble with the clinic and that it has received attention from the Medical Association is true in important parts.”

Tokyo District Court, May 20, 2015 (2015)

The court stated that “it cannot be recognized that there are no circumstances suggesting the existence of reasons to prevent the establishment of illegality, etc.,” and dismissed the plaintiff’s claim.

Examples of Unjustified Disclosure Requests

A case occurred where a plaintiff, claiming that their personal rights or copyright had been violated in a post on the website “2channel” (now “5channel”), managed by a Singaporean corporation, sought the disclosure of the poster’s name or title, address, and email address from the intermediary provider for the purpose of seeking damages.

Posting that could harm the sender’s life before litigation

Before the lawsuit, the plaintiff had written on their blog, “As soon as we find out your name and address, detectives and credit research agencies will investigate everything about you.” “Cowards will be dragged onto the public stage and exposed.” Furthermore, after the preparation of the affidavit, they made a post stating “I will publicize the sender’s name.”

In this regard, the court stated,

① The plaintiff repeatedly posted on their blog that they would investigate everything using detectives, etc., expose the sender, reveal everything, and publicize the name to the public after obtaining the sender’s information. ② When the defendant pointed out these blog articles, ③ the plaintiff submitted an affidavit stating that they had no intention of misusing the sender’s information. However, ④ they continued to post on their blog that they would publicize the sender’s name. Given these facts, it is inevitable to say that the plaintiff intends to misuse the sender’s information and unjustly harm the sender’s reputation or peaceful life.

Tokyo District Court, April 19, 2013 (Heisei 25)

The court rejected the plaintiff’s claim, denying a legitimate reason to receive the disclosure of the sender’s information, as there was a risk of unjustly harming the sender’s reputation or peaceful life.

Court Case Where Only Part of the Disclosure Request Was Granted

What happens when there are multiple posts suspected of infringing on rights, and a collective request for disclosure of sender information is made? If among the posts for which a request was made, there are posts where no infringement of rights is recognized, would the request be rejected?

There is a case where the plaintiff claimed that their reputation was defamed and their rights were infringed upon by multiple blog articles on the internet by an anonymous sender. The plaintiff requested the disclosure of sender information from the defendant, who is the intermediary provider, and part of the request was granted.

Thus, when there are multiple articles or posts that are the subject of a lawsuit, there is a possibility that only part of the disclosure request will be granted.

Disclosure Request Not Granted for Stating Facts of Stalking Before Settlement

Around 2010 (Heisei 22), the plaintiff met a woman at a so-called adult entertainment establishment and sent her multiple emails and stalked her near her workplace from around June 2012 (Heisei 24) to January of the following year. Two days later, the plaintiff was questioned at the Kanagawa Prefectural Police Isezaki Police Station and submitted a written pledge not to approach the woman again.

On February 26, 2014 (Heisei 26), the plaintiff apologized to the woman for the stalking and paid 200,000 yen as a settlement, promising not to contact her again.

The plaintiff requested the disclosure of sender information for three articles posted on a blog about this stalking, claiming, “My reputation was defamed, and my rights were infringed.” The three articles were as follows:

・Article 1
As of around April 20, 2014 (Heisei 26), it stated that the plaintiff was still repeating the stalking behavior.

・Article 2
As of around December 19, 2013 (Heisei 25), it stated the fact that the plaintiff was voluntarily questioned by the police about the stalking, but denied it.

・Article 3
As of around May 2, 2014 (Heisei 26), it stated the fact that a stalking murder had occurred in Osaka, and by expressing the opinion or critique that the sender of the article thought the plaintiff might come to kill someday, it suggested that the plaintiff was still continuing the stalking behavior at that time.

The court did not grant the request for disclosure of sender information for Article 2, which was written before the settlement was reached, stating:

“The fact that the plaintiff is stalking B (the victim) is regulated by the Japanese Anti-Stalking Act, and those who commit such acts may be criminally punished. Therefore, it is recognized that there is public interest in stating that the plaintiff is committing the above-mentioned act.”
Tokyo District Court, March 8, 2016 (Heisei 28) Judgment

Related article: What is the definition of a net stalker? Explaining the standards for police action[ja]

Disclosure Request Granted for Stating Facts of Stalking After Settlement

On the other hand, for Articles 1 and 3, the court ordered the disclosure of sender information, stating:

“Even considering that the fact that the plaintiff committed the stalking is true as a past fact, and that there is no confidentiality clause in the settlement regarding the existence of the stalking, it cannot be said that it is immediately illegal to inform a third party of this. However, it cannot be recognized that there was a purpose to serve the public interest in posting Articles 1 and 3 on a blog on the internet that can be viewed by an unspecified number of people, in a situation where it is not recognized that the plaintiff is continuing to stalk B (the victim) and has not committed stalking. Therefore, it cannot be denied that there is illegality in the posting of these articles by the sender, without even considering the other points.”
Tokyo District Court, March 8, 2016 (Heisei 28) Judgment

Thus, when there are multiple articles, the court makes a strict judgment for each article, and it is not the case that all will be granted if requested. Careful preparation is necessary for a request for disclosure of sender information.

Infringement of Rights Related to Disclosure Requests for Sender Information

In order for a request for disclosure of sender information to be granted, it is necessary to meet the seven requirements mentioned earlier. Among these, the “rights” referred to in “3. Clear Infringement of Rights” mainly include “right to honor,” “emotional honor,” and “right to privacy.” Let’s take a closer look at the requirements needed to assert these infringements of rights.

Infringement of Honor Rights

Firstly, the concept of honor is generally classified into three categories: internal honor, external honor, and honor feelings (subjective honor). In the context of honor rights, “honor” usually refers to external honor, which is “the objective evaluation received from society regarding the personal value of a person’s personality, virtue, reputation, credit, etc.” (Supreme Court, June 11, Showa 61 (1986)). Simply put, it is something that leads to a decrease in social evaluation.

In order to request the disclosure of the sender on the grounds of infringement of honor rights, the following three requirements must be met:

• Decrease in social evaluation
• In the case of defamation by fact indication, the untruthfulness of the indicated fact
• In the case of defamation by opinion or comment, the untruthfulness of the premise fact or the expression amounts to a personal attack

However, even if the above requirements are met, if the following applies, the clear infringement of rights is not recognized, and the request for sender disclosure will be rejected.

1. It pertains to facts related to public interests
2. The purpose is solely to serve the public interest
3. In the case of defamation by fact indication, the important part of the indicated fact is true, or there is a reasonable reason to believe that it is true
4. In the case of defamation by opinion or comment, the important part of the fact that formed the basis of the opinion or comment is true, or there is a reasonable reason to believe that it is true
5. In the case of defamation by opinion or comment, the content of the expression does not deviate from the realm of opinion or comment, such as amounting to a personal attack

In the case of defamation by fact indication, if 1 to 3 above are met, and in the case of defamation by opinion or comment, if 1, 2, 4, and 5 are all met, the request for sender disclosure will not be granted (Supreme Court, June 23, Showa 41 (1966) for fact indication, Supreme Court, September 9, Heisei 9 (1997) for opinion or comment).

Reference article: What are the conditions for suing for defamation? Explaining the requirements and the average compensation[ja]

Reference article: What are the requirements for defamation of expressions including opinions or comments?[ja]

Infringement of Honor (Insult)

Honor, in this context, refers to the subjective consciousness and evaluation of one’s personal worth. In other words, it is about one’s self-esteem (pride).

Since honor is a subjective emotion, it cannot be unconditionally protected by law. Therefore, the Supreme Court has set a standard that “the infringement of the defendant’s personal interests can be recognized only when it is recognized as an insulting act that exceeds the limits permitted by social norms” (Supreme Court decision on April 13, Heisei 22 (2010), Minshu Vol. 64, No. 3, p. 758).

For example, there have been court cases where comments such as “disgusting”, “too stupid”, and “ugly” were recognized as infringements of honor. Whether or not honor is being infringed upon is determined not only by the content of the words, but also by considering various factors for each case, such as “the context before and after”, “the manner (means/method) and situation (especially time/place) of the speech and behavior”, and “the degree (frequency) of the speech and behavior”.

Related article: What is an infringement of honor? Past precedents and how to deal with comments[ja]

Infringement of Privacy Rights

While there are no court precedents that define “privacy rights” or establish the requirements for their infringement, it is judged that privacy is infringed when, after comprehensively considering the following six requirements indicated by the Supreme Court precedent (Supreme Court Decision, Heisei 29 (2017), January 31), the legal interest of not disclosing facts outweighs the interest of disclosing them.

• The nature and content of the post in question
• The extent to which facts pertaining to privacy are communicated and the degree of specific damage
• The social status and influence of the person who made the post
• The purpose and significance of the post
• The social situation at the time of the post and subsequent changes
• The necessity of describing the facts in question

Examples of information that constitutes an infringement of privacy rights include “facts about private life”, “name, address, phone number”, “illness”, “criminal record”, “physical personalityistics”, “marriage/divorce history”, and so on.

Other Rights Infringements

Other rights that may be infringed upon online include “portrait rights”, “name rights and identity rights”, “business rights and duty performance rights”, “copyright”, and “trademark rights”.

Whether or not there is an infringement of each right depends on whether the requirements for each right are met. If it is difficult to make a judgment, it is advisable to consult with a lawyer.

Summary: Consult a Lawyer When Making a Disclosure Request

While a sender information disclosure request is beneficial from the perspective of relief for those whose rights have been infringed, the sender’s information is deeply tied to the sender’s privacy, freedom of expression, and the secrecy of communication. It is inevitable that careful judgment is required when disclosing this information.

Although a sender information disclosure request needs to be made promptly, thorough preparation is necessary, and it is generally a difficult procedure. If you succeed in identifying the sender, you may be able to claim damages for the costs incurred in the lawsuit. Please consult with an experienced lawyer for such procedures.

For specific procedures and steps for a sender information disclosure request, please refer to the following article.

Related article: What is a sender information disclosure request? A lawyer explains the method and points to note[ja]

Also, for the new system of sender information disclosure requests due to the amendment of the Provider Liability Limitation Act in Reiwa 4 (2022), please refer to the following article.

Related article: Explanation of the “Sender Information Disclosure Order Case” starting on October 1, Reiwa 4 (2022) – Speeding up the identification of posters[ja]

Introduction to Our Firm’s Measures

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 practice at Monolith Law Office: Digital Tattoo[ja]