Establishment of Defamation and Public Interest

In civil defamation cases,

“If the expression in question diminishes the objective evaluation received from society regarding a person’s personality, virtue, reputation, credit, and other personal values, it can be established as defamation, regardless of whether it indicates a fact or expresses an opinion or critique.” (Supreme Court of Japan, September 9, 1997 (Gregorian calendar year))

However, in the case of defamation by opinion or critique, if the following four requirements are met, the illegality is denied (illegality rejection), 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 Interest)
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 opinion or critique does not exceed its bounds, such as personal attacks

Among these, under which circumstances the public interest, which is often the most discussed in determining whether defamation by opinion or critique is established, is recognized in actual court cases.

What is Public Interest?

The concept of public interest is defined in Article 230, Paragraph 2 of the Japanese Penal Code as “a case where it is recognized that its purpose is solely to serve the public interest.” This is also stated in the Supreme Court precedent as “solely serving the public interest.” However, this does not mean that if there is even a slight purpose other than public interest, the public interest is denied.

In a lawsuit for the return of advertising fees between Company A, which operates an internet advertising business, and Company B, which requested the advertisement, the Tokyo District Court, regarding the description posted on the website by Company B and the emails sent to the plaintiff’s clients, etc., against Company A’s claim that the true purpose was not public interest but to clear personal grudges, stated, “As for the purpose of solely serving the public interest, it is considered sufficient if the main motive is for public interest” (Judgment of November 8, 2012 (Heisei 24)), thus recognizing the public interest.

Public Interest and Public Nature

The term “public nature” refers to “facts related to public interests.” Therefore, if this is recognized, it often leads to the recognition of public interest. In reality, in court, if there is a public nature, posts of such content are often recognized as having a “purpose of promoting public interest,” in other words, having public interest. If there is no evidence sufficient to overturn this judgment, the public interest is affirmed.

In a case where the plaintiff sought disclosure of sender information because defamatory posts were made on a bulletin board regarding a traffic accident, the Tokyo District Court stated, “The article in question is related to public interests, and therefore, it can be recognized as being solely for the purpose of promoting public interest, and there is no submission of evidence sufficient to overturn this judgment” (Judgment of October 31, 2008 (Heisei 20)). This can be said to be a typical judgment.

When Public Interest is Recognized

So, under what conditions is public interest actually recognized?

There was a case where a company (X2) and its chairman (X1) demanded 60 million yen in damages and the deletion of a blog post, along with an apology advertisement, from a lawyer who had written a blog post criticizing the chairman of a cosmetics manufacturing and sales company for lending 800 million yen to Yoshimi Watanabe, the former representative of the disbanded “Your Party”. The blog post claimed that this act of trying to buy politics with money should be thoroughly criticized, and it was argued that it defamed the honor of the chairman and the company and violated their feelings of honor.

Matters Related to Public Interest

The defendant lawyer criticized the act of lending a large amount of money to a person who was a party representative and a member of the Diet, which is contrary to the spirit of the Political Funds Control Act. The defendant was merely commenting, and the content did not attack the plaintiff’s personality, but was purely political speech. The plaintiffs, as a business operator and its representative who manufacture and sell a large amount of food, supplements, and cosmetics, have an influence directly related to the health of citizens, and are in a position similar to public figures. They provided cash without a declaration based on the Political Funds Control Act, and it should be said that they are in a position to accept criticism from the public like politicians. They argued that “the descriptions in this case are related to facts concerning public interest, and their publication was solely for the purpose of serving the public interest.”

In response, the court considered the defendant’s article as an opinion or commentary, and its content “gives the general reader the impression that the loan in question distorts politics for the benefit of the plaintiffs, and can be said to lower the social evaluation of the plaintiffs.”

However, on the other hand, it was said that “the important parts of the facts that are assumed are all proven to be true,” and

The descriptions in this case are all expressions of opinion or commentary, and as far as they are facts concerning public interest, as their purpose is solely to serve the public interest, the important parts of the assumed facts are proven to be true, there is a logical relationship between the assumed facts and the opinion or commentary, and it cannot be said that they have deviated from the realm of opinion or commentary, such as personal attacks, it should be considered as lacking illegality.

(Tokyo District Court, September 2, 2015)

It denied illegality, in other words, did not recognize defamation, and also, expressions that mock, such as “husband and pimp” and “ugly collaboration,” cannot be considered as personal attacks, and cannot be recognized as denying personal value beyond the range allowed by social norms, and cannot be considered as insulting acts beyond the limits allowed by social norms, and rejected the plaintiffs’ claims.

This can be said to be a textbook example of speech and defamation against the activities of politicians and those around them.

When Public Interest is Not Recognized

Even if you claim that your blog posts were made with the intention of serving the public interest, there are times when this may not be recognized. So, when might this be the case?

In the Case of Malicious Posts

There was a case where plaintiffs X1, a publisher, and her husband X2, claimed damages based on tort law because a blog about Asperger’s syndrome had posted defamatory comments about them.

X1, who is also the editor in charge of author A, who is said to have published books on autism, given lectures on autism and developmental disorders in various places, and served as a member of the Central Council for Disability Measures in the Cabinet Office as a translator. The defendant repeatedly posted about 80 times, claiming that “A is a non-existent autistic patient, a fictional personality made up by the healthy plaintiff X1 for business, and X1 is playing A” and “X2 is also making up A for business in collusion with his wife”, and defaming the plaintiffs as “fraudsters”, “criminals”, “perverts”, “X1 loves money”, “X2 is anorexic”, etc.

The defendant argued that the fact that the healthy plaintiff X1 was playing the role of an autistic patient A was causing dangers to society, such as the spread of incorrect perceptions among autistic patients that “stress is relieved by self-harm”. “A” is serving in public duties such as a member of the Central Council for Disability Measures in the Cabinet Office, and there is a risk of misunderstanding about autism spreading in society. The purchasers of the books on autism by “A” published by the said publisher are mistaken for being written by an autistic patient and are being deceived of their money. In addition, there is also a risk of spreading incorrect knowledge about autism in society through these books. The defendant argued that the purpose of each of these posts was to spread a correct understanding of autism in society and to stop these dangers, and that they were solely for the public interest.

In response, the court recognized that the blog posts gave the impression to an unspecified number of people that X1 and X2 were “people who would make up a person named A for their own benefit”, “fraudsters”, “criminals”, etc., and lowered the social evaluation of the plaintiffs.

Then, in judging the public interest, while touching on the breadth of the range that was made public about 80 times, the length of the period, and the number and manner of posts,

Each of these posts criticizes or comments on the plaintiffs’ actions or nature using expressions that can only be described as personal attacks, and looking at the wording and tone, it is impossible to recognize that the purpose of each of these posts is solely to serve the public interest, as they unilaterally conclude that the plaintiffs are doing something illegal or wrong, or criticize them persistently.

(Tokyo District Court, October 16, 2009)

The court recognized the defendant’s defamation and ordered the defendant to pay 1.1 million yen in consolation money and 110,000 yen in attorney’s fees to plaintiff X1, and 700,000 yen in consolation money and 70,000 yen in attorney’s fees to plaintiff X2, for a total of 1.98 million yen.

Thus, even if you claim to be serving the public interest, if your posts are malicious personal attacks, public interest will not be recognized.

When Remuneration is the Purpose

As we introduced in another article on our site, “Removal of Self-Made and Affiliate Ranking Sites”, there was a case where a company that plans, develops, and sells foreign language teaching materials requested Google to disclose the sender’s information in order to claim damages based on tort law for infringement of the right of honor by an affiliate, and it was recognized.

Google claimed that “the facts about the effectiveness or lack thereof of the plaintiff’s teaching materials provided to an unspecified number of consumers, the appropriateness of their advertising methods, and the fact that there are many complaints are important social concerns and can be said to be facts related to public interests”, and “this post, from its content, is primarily intended to provide consumers with useful information about the effectiveness and advertising methods of the plaintiff’s teaching materials, and there is a public interest purpose”. However, the plaintiff argued that “since this site is an affiliate site, it cannot be said that this post, which criticizes the plaintiff’s product for the purpose of such remuneration, is solely for the public interest. If sites that disguise themselves as aggregating the opinions of general consumers and pursue their own economic purposes such as advertising revenue are judged to be solely for the public interest, it would allow advertising sites that attack competing products, which would be a serious problem”, and “even if this post is considered an opinion or comment, if it makes an unreasonable inference based on the premise facts, even if it does not amount to a personal attack, the illegality exclusion reason cannot be recognized”.

In response, the court stated that the plaintiff had used fraudulent and deceptive advertising phrases that intentionally misled general consumers, and that as a result, there were many complaints from consumers about the plaintiff’s teaching materials, and that it was clear that this lowered the social evaluation of the plaintiff. Furthermore,

This site is intended to primarily earn affiliate fees by giving a bad impression of the plaintiff’s teaching materials and their advertising methods, lowering their evaluation, and inducing the purchase of specific English teaching materials, so it cannot be recognized that this post is solely for the purpose of serving the public interest.

(Tokyo District Court, July 13, 2015)

The court ordered Google to disclose the sender’s information, stating that it could not recognize the purpose of serving the public interest.

It goes without saying that if the purpose is to earn remuneration or private gain, such as advertising revenue, public interest will not be recognized.

Summary

Just because your social reputation has been damaged, it doesn’t necessarily mean you can claim defamation. Even if the person who posted the comment claims it was in the public interest, it doesn’t automatically mean that the public interest will be recognized.

Whether or not you can claim defamation can be a difficult judgment to make. If you find yourself in such a situation, please consult with an experienced attorney.