As a privilege of being a licensed attorney, one can utilize a system known as the “Japanese Bar Association Inquiry”.
This system allows attorneys to make inquiries to third parties, other than the opposing party in a dispute, through an organization called the “Japanese Bar Association”.
The Japanese Bar Association is an organization composed of attorneys and law firms.
An attorney can apply to the Japanese Bar Association, stating, “I am handling this case, and in order to resolve it, I need this third party to answer this question. Therefore, I would like the inquiry to be made in the name of the Japanese Bar Association”.
Because the inquiry is made in the name of the Japanese Bar Association, rather than a mere inquiry by an individual attorney, there is a very high likelihood that the third party who received the inquiry will respond.
To give an extreme example, if you use the Japanese Bar Association Inquiry out of curiosity to ask a mobile phone company for the address and phone number of a certain gravure idol, there is a possibility that they might tell you.
This is only a possibility, but if it were to be misused in such a way, it would become a major issue, so it is a system with strict operation.
Could this Japanese Bar Association Inquiry be effective for measures against defamation, such as requests for disclosure to identify posters on the Internet?
What is a Bar Association Inquiry?
A Bar Association Inquiry is a system established to facilitate the smooth conduct of professional activities by lawyers. When a lawyer receives a case, they collect evidence and materials, investigate the facts, and so on.
It is stipulated in “Article 23-2 of the Japanese Attorney Act”, so it is also called “Article 23 Inquiry”.
A lawyer can request their affiliated bar association to inquire to public offices or public and private organizations about the case they are handling and ask for a report on necessary matters. If there is a request, the bar association can reject it if it deems the request inappropriate.
Article 23-2, Paragraph 1 of the Japanese Attorney Act
Based on the provisions of the preceding paragraph, the bar association can inquire to public offices or public and private organizations and ask for a report on necessary matters.
Article 23-2, Paragraph 2 of the Japanese Attorney Act
Procedure for Disclosure Requests through the Bar Association Inquiry
To use the Bar Association Inquiry, a lawyer submits an “Inquiry Application Form” to the Bar Association to which they belong, detailing the matters of inquiry and the reasons for the application.
Once the “Inquiry Application Form” is submitted to the Bar Association, the Association reviews whether the requirements set by the Bar Association are met and whether it is truly necessary to conduct the inquiry considering the circumstances that require the inquiry.
If there are any deficiencies in the contents of the “Inquiry Application Form” or if there are doubts about the necessity of the inquiry, the lawyer may be asked to rewrite or reconsider.
After such a review, only for those deemed to have the necessary and appropriate reasons, an “Inquiry Letter” is sent to the inquiry destination in the name of the President of the Bar Association.
Of course, if the Bar Association’s review determines that the requirements are not met, the application for inquiry will be rejected and no inquiry will be conducted.
In the review, to ensure a fair review, it is stipulated that a lawyer who has no involvement in the application and is designated by the president of each Bar Association will conduct it.
Once the review is passed and the “Inquiry Letter” is sent, a response to it is sent from the inquiry destination to the Bar Association.
The Bar Association checks the content and, if it contains information not necessary for the case, it is redacted before the response letter is handed over to the lawyer.
Information Obtained through Bar Association Inquiries
So, what specific information can be obtained through bar association inquiries?
The information that can be obtained through bar association inquiries is diverse, for example:
Example 1: Amount and Payment Time of Salary and Retirement Allowance
Person. B, who was approached for a divorce by person. A who is about to retire, asked for a property division regarding the retirement allowance, but person. A did not disclose the amount or payment time of the retirement allowance.
In such a case, person. B’s attorney will tell person. A that if they do not disclose their financial situation, they will have to make a bar association inquiry to their employer.
Even then, if person. A does not disclose their financial situation, they can use the bar association inquiry to obtain information such as the amount and payment time of person. A’s retirement allowance from their employer.
Example 2: Identifying the Adulterous Partner to Claim Damages for Adultery
Bar association inquiries can also be used for the purpose of filing a lawsuit for damages against a partner who has committed adultery with a spouse.
If you know the other party’s email address or mobile phone number, you can use that information to make a bar association inquiry to the telecommunications operator and find out the other party’s name and address.
There are also cases where the owner’s name was confirmed by making a bar association inquiry to the Ministry of Land, Infrastructure, Transport and Tourism related agencies based on the other party’s car license plate, and the adulterous partner was identified.
Example 3: When a Family Member Does Not Show the Deceased’s Bankbook in Inheritance Division Discussions
In inheritance division discussions, it is essential to first clarify the contents of the inheritance, but there are often cases where some family members do not disclose the bankbook and the financial situation cannot be grasped.
In such cases, you can know information such as the transaction history of the bankbook by making a bar association inquiry to the bank.
Example 4: When a Copy of the Property Accident Report is Needed
An accident without injuries is called a property accident, and the report created by the police at that time is called a “property accident report”.
While the “on-the-spot inspection report” (a summary of the accident situation by the police in the presence of the parties) in the case of a personal injury accident can be obtained by individuals, the “property accident report” in the case of a property accident cannot be obtained by individuals and is usually not disclosed to the parties involved in the accident.
However, there may be times when a copy of the “property accident report” is needed later when the negligence ratio becomes a dispute. In this case, you can request the police to provide a copy of the “property accident report” through a bar association inquiry.
Example 5: Immigration Records
If an incident occurs and there is important testimony in the lawsuit that the person involved in the incident was “in a foreign country on the day of the incident”, how can the truth be clarified?
The Immigration Bureau of the Ministry of Justice stores the immigration records of Japanese people and foreigners for the purpose of “ensuring fair management of immigration”.
Although this information is basically non-public, if this information becomes a point of dispute in a lawsuit and its necessity is recognized, it can be possible to know the immigration record of the relevant day and the name of the airline used through a bar association inquiry.
Example 6: Names and Addresses of Contractors Held by Affiliate Businesses
If you want to make a claim for damages against a website operated anonymously on the Internet, if there is an affiliate advertisement on the website, you can use a bar association inquiry to the affiliate business to request the disclosure of information such as the address and name of the operator of the website.
This is a method that also appears in the NHK Saturday drama “Digital Tattoo”, for which our office’s representative lawyer served as the original plan.
As mentioned above, attorneys can obtain a wide variety of information through the attorney inquiry system, but why is this “privilege” granted to attorneys?
In order for an attorney to solve a problem on behalf of a client, certain information is necessary.
From the perspective of protecting the client’s interests, the attorney must perform their duties to discover the truth and ensure a fair judgment. At the same time, they also have a mission to “defend basic human rights and realize social justice” (Japanese Attorney Act, Article 1).
Because the duties of an attorney have a public nature, the right to collect information through attorney inquiries is legally recognized.
The attorney inquiry is a system established by law, and public agencies, companies, and businesses that receive inquiries are, in principle, obligated to respond and report (Supreme Court Third Petty Bench, October 18, 2016).
Furthermore, these responses and reports are considered legitimate actions, not violations of confidentiality, and it is generally believed that the respondent will not be liable for tort due to this (Hiroshima High Court Okayama Branch, May 25, 2000 (Heisei 12), Osaka District Court, February 22, 2006 (Heisei 18), etc.).
The Act on the Protection of Personal Information allows for the provision of information to third parties without the consent of the individual in cases based on laws and regulations. This includes Article 23-2 of the Attorney Act, so responses containing personal information can be made to the bar association without the individual’s consent.
Various guidelines created by the supervisory agency for the Act on the Protection of Personal Information also explicitly state that attorney inquiries are based on laws and regulations.
This is also the case for the Act on the Protection of Personal Information Held by Administrative Agencies and the Act on the Protection of Personal Information Held by Independent Administrative Agencies, etc.
By using attorney inquiries, it is possible to obtain extremely important information, including personal information. To prevent the attorney inquiry system from being abused and the indiscriminate leakage of third-party personal information due to false or inappropriate applications, the bar association conducts strict examinations to determine whether there is a real necessity and appropriateness for the inquiry.
Procedure for Disclosure Requests and Bar Association Inquiries
So, can bar association inquiries be effective for measures against defamation, such as disclosure requests for identifying posters on the Internet?
For instance, let’s consider a case where you want to identify the author of a defamatory post on a certain website.
To identify the poster, you first need to identify the site administrator. This is because if the site administrator and the poster are different, you need to make a disclosure request to the site administrator for the poster’s IP address.
If the site administrator’s name is displayed, there is no need to investigate. However, if the site administrator is using a domain proxy service, you need to identify the site administrator. This is where bar association inquiries are used for “identifying the site administrator”.
By using a bar association inquiry to the domain proxy service, you can obtain information about the site administrator.
Once the site administrator is identified, you make a disclosure request to the site administrator for the poster’s IP address.
While the site administrator may voluntarily comply with the disclosure request and disclose the poster’s IP address, using a bar association inquiry will result in the information being disclosed in response.
However, it is also true that there are cases where disclosure is refused unless a public judgment is made by the court. In such cases, you will need to apply for a provisional disposition for the disclosure of sender information.
Once the IP address is identified, you use that information to identify the provider. This is to request the provider to disclose the poster’s information.
However, under the regulations of the Japanese Personal Information Protection Law, there are few cases where the provider voluntarily discloses the poster’s personal information, and in most cases, you cannot get the information disclosed even if you use a bar association inquiry. The reality is that you have no choice but to make a request for disclosure of sender information through a lawsuit.
To summarize the relationship between the procedure for disclosure requests and bar association inquiries, bar association inquiries are actually used when making the domain proxy service respond with the site administrator’s information, or when making the site administrator respond with the poster’s IP address.
Therefore, it can be said that bar association inquiries are a system that can also be utilized for measures against defamation on the Internet.
Number and Breakdown of Inquiries to the Bar Association
Inquiries to the Bar Association are widely used in practice, and according to the Japan Federation of Bar Associations (日本弁護士連合会), the number of uses in 2020 (Gregorian calendar year) was approximately 200,000. However, most of these inquiries were made to the police (28.2%), financial institutions (28.2%), and the prosecutor’s office (9.1%), with only 6.5% being communications.
Inquiries to the police are often aimed at resolving criminal defense and traffic accident cases, and inquiries to the prosecutor’s office are also likely to be aimed at resolving traffic accident cases.
Inquiries to financial institutions are likely primarily aimed at resolving issues related to inheritance.
Usage in Defamation Measures is Low
The breakdown of inquiries to the Bar Association shows that “communication” related cases account for about 6.5% or 12,800 cases. This includes inquiries to mobile phone companies for identity verification, so the number of defamation-related cases is even smaller.
Why is the Bar Association inquiry not used much for defamation cases?
A typical example of using the Bar Association inquiry in defamation measures on the Internet is the aforementioned case of identifying the sender. The basic approach would be to make a disclosure request to the transit provider, who holds the IP address of the sender who posted the defamation, using the Bar Association inquiry to demand “disclose the IP address”.
If the IP address is disclosed, the transit provider is identified, and a request for disclosure of sender information is made.
However, as mentioned above, providers generally do not comply with the disclosure of sender information unless the sender agrees.
This is why the number of Bar Association inquiries is low. Bar Association inquiries also take time and cost money, so it is not efficient to make inquiries to parties who are reluctant to disclose. The reason why transit providers do not respond to Bar Association inquiries is not only because there are no penalties, but also because there may be cases where the user, who is the sender, may claim damages as a result of the disclosure.
Disclosing user’s personal information easily poses a significant risk to companies.
However, it is not necessarily a bad thing that transit providers are cautious about disclosing sender information. Even if it is defamation, it is still a form of speech, so the potential infringement of freedom of speech must also be considered.
Requesting IP Address Disclosure is Possible Through Sender Information Disclosure Request
In order to identify the poster of defamation, such as requesting the disclosure of an IP address, a procedure based on the ‘Japanese Provider Liability Limitation Law’ called ‘Sender Information Disclosure Request’ is established.
From the perspective of the transit provider, rather than an inquiry from the bar association, it is more common to request disclosure in accordance with the ‘Japanese Provider Liability Limitation Law’. We provide a detailed explanation of the procedure for the Sender Information Disclosure Request in the following article.
There are situations where we must rely on inquiries to the Bar Association
However, in the broader sense of “reputational damage” and “problems through the internet”, there are situations where we must resort to inquiries to the Bar Association.
Generally speaking, there is no law that allows for the disclosure of information about someone who is doing something wrong on the internet
For those who have made posts on a website that could be considered defamation, the Japanese Provider Liability Limitation Act (プロバイダ責任制限法) stipulates the right to request disclosure of sender information
Given this structure, in cases where “1 (misconduct on the internet) is present, but it does not fall under 2 (subject to disclosure request under the Provider Liability Limitation Act)”, there are many cases where the only effective means of requesting disclosure is through an inquiry to the Bar Association.
For example, this applies when you have been victimized by threats, not through posts on a website, but through emails.
While we will not go into detail in this article, in the case of emails, regardless of the content of the email, it is impossible to request the disclosure of sender information under the Provider Liability Limitation Act, unlike posts on a website.
In this case, in order to disclose the sender information of the email through civil procedures, it is necessary to use an inquiry to the Bar Association to the operator managing the source server of the email, demanding “disclose information about the user who sent this email”.
Summary: Consult a Lawyer for Inquiries about the Bar Association
In this article, we have discussed the overview of inquiries to the Bar Association and considered whether such inquiries are effective for measures against defamation on the Internet, such as identifying the poster. The conclusion is that while it is effective and powerful, it is limited. For methods of requesting disclosure of sender information, including inquiries to the Bar Association, please consult a specialist lawyer.
Introduction to Our Firm’s Measures
Monolith Law Office is a legal office with high expertise 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.
An expert in IT-related legal affairs in Japan who established MONOLITH LAW OFFICE and serves as its managing attorney. Formerly an IT engineer, he has been involved in the management of IT companies. Served as legal counsel to more than 100 companies, ranging from top-tier organizations to seed-stage Startups.
