Is it Possible to Delete Search Results? An Explanation of the 'Right to be Forgotten

The right to request the deletion of past information about oneself, such as articles, is attracting attention as the “Right to be Forgotten”. So, what kind of legal judgment has been made in Japan regarding the “Right to be Forgotten”?

On January 31, 2017 (Heisei 29), the Supreme Court made a decision regarding the URLs related to the arrest history for violation of the “Japanese Act on Punishment of Activities Relating to Child Prostitution and Child Pornography” about five years ago displayed on Google’s search engine. Without using the term “Right to be Forgotten”, the court considered the possibility of deletion based on privacy, established a standard for comparative weighing, applied it, and decided to deny deletion.

After this Supreme Court decision, there are voices saying that it has become difficult to delete search results related to arrest articles and arrest history. However, we will explain how requests for deletion of search results are handled in court.

https://monolith.law/reputation/deletion-arrest-article[ja]

Disclosure of Criminal Records and Previous Convictions

There are numerous instances where the disclosure of another person’s arrest history, etc., has been recognized as an invasion of privacy.

Disclosure of Criminal Records and Article Deletion

A former defendant, who was found guilty in a criminal case that took place in Okinawa under occupation, raised an issue about being depicted by his real name in a non-fiction novel (the “Reversal” non-fiction case). The court ruled that, “The fact that a person has been suspected in a criminal case, further prosecuted as a defendant, received a judgment, particularly a guilty verdict, and served a sentence, directly affects their honor or credit. Therefore, such a person has a legally protected interest in not having the facts related to their criminal record disclosed indiscriminately.” The court also stated that, “In cases where the legal interest in not disclosing facts related to a criminal record is considered superior, one can seek compensation for mental distress caused by such disclosure.” The court recognized this as an invasion of privacy and ordered the payment of damages (Japanese Supreme Court, February 8, 1994 (Gregorian calendar year)).

In 2009, an issue arose when a website published the information of a former defendant, who had been found guilty and served a sentence for an insurance murder case, including his real name. The court stated, “A person like the plaintiff, who has received a guilty verdict or completed a sentence, is expected to return to society as a general citizen. Therefore, they have a legally protected interest in not having their peaceful social life, which they are newly forming, disturbed by the disclosure of facts related to their criminal record, and in not being hindered in their rehabilitation.”

Furthermore, considering that more than 20 years had passed since the incident occurred and more than 8 years had passed since the plaintiff completed the execution of his sentence at the time the article in question was published, the court stated, “The fact that the plaintiff became well-known does not immediately mean that he no longer has a legal interest in not having facts related to his criminal record disclosed.” The court recognized this as an invasion of privacy and ordered the payment of damages (Tokyo District Court, September 11, 2009 (Gregorian calendar year)).

https://monolith.law/reputation/privacy-invasion[ja]

Thus, if the disclosure of others’ arrest records, etc., is recognized as an invasion of privacy, one might think that it would be sufficient to request the deletion of each article disclosing arrest records, etc., on the internet, and there would be no need to request the deletion of search results, which is difficult to obtain.

However, there are situations such as:

• When it is impossible to contact the party to whom the deletion request is made, for example, when it is impossible to communicate with overseas sites or residents abroad, or when they do not comply with Japanese judgments, etc.
• When the number of sites to be deleted is enormous, and it takes time and results in high attorney fees and investigation costs.
• When the problem is that it appears in search results, and even if there are defamatory articles on anonymous bulletin boards, it is not unbearable as long as they do not appear in search results.

These are the realities that often necessitate the deletion of search results.

Public Disclosure of Criminal Records and Deletion of Search Results

Why is it more difficult to have search results removed than to have articles deleted? Let’s clarify the issues at hand.

When we talk about search service providers, famous ones like Yahoo and Google probably come to mind. To define them precisely, they are entities that comprehensively collect information posted on websites on the Internet, store copies of this information, organize the information by creating indexes based on these copies, and provide information that corresponds to certain conditions indicated by users as search results based on these indexes.

This collection, organization, and provision of information by search service providers is done automatically by a program. However, this program is designed to produce results in line with the search service provider’s policy on providing search results. The provision of search results is considered an act of expression by the search service provider and is regarded as related to freedom of expression.

Furthermore, the provision of search results by search service providers supports people in disseminating information on the Internet and obtaining necessary information from the vast amount of information available on the Internet. In modern society, it plays an extremely important role as the foundation of information distribution on the Internet.

Therefore, it is considered that when the provision of specific search results by a search service provider is deemed to infringe on rights and a request is made for their removal, it is a restriction on the act of expression and also a restriction on the social role fulfilled through the provision of search results.

In a decision concerning the so-called “right to be forgotten,” the Supreme Court of Japan indicated the following standard for balancing interests in the deletion of search results:

Whether the act of a search service provider providing, in response to a request for a search based on certain conditions about a person, information such as the URL of a website where articles containing facts belonging to that person’s privacy are posted as part of the search results is illegal or not, should be judged by comparing and weighing various circumstances related to the nature and content of the facts, the range of transmission of facts belonging to the person’s privacy due to the provision of the URL information, the degree of specific damage suffered by the person, the person’s social status and influence, the purpose and significance of the articles, the social situation at the time the articles were posted and subsequent changes, the necessity of describing the facts in the articles, the legal interest of not having the facts disclosed, and the reasons for providing the URL information as search results. If it is clear that the legal interest of not having the facts disclosed is superior, it is reasonable to interpret that the search service provider can be requested to remove the URL information from the search results.

Supreme Court of Japan, Decision of January 31, 2017 (Heisei 29)

The decision drew significant attention for two main reasons:

1. The decision treated the deletion of search results as part of general privacy rights and did not mention the “right to be forgotten” at all.
2. The decision clearly established the requirement of “clear cases.”

Regarding the first point, some have argued that the decision denies the “right to be forgotten.” However, it can be understood that the court did not specifically mention the “right to be forgotten” because it believed that it could make a judgment by comparing and weighing the issues based on existing standards, without introducing a new concept.

Regarding the second point, the standard for comparing and weighing, which had been stated as “cases where the legal interest of not having facts such as criminal records disclosed is considered superior” in decisions such as the Supreme Court’s decision on the non-fiction “Reversal” case, was stated as “clear cases where the legal interest of not having the facts disclosed is superior.”

In other words, the phrase “clear cases where the legal interest of not having the facts disclosed is superior” means that the search engine is given priority from the outset, and unless there is a high degree of privacy infringement, it will not be judged as “clear,” and the search results will not be deleted. This interpretation has raised the bar for those requesting deletion, as it is perceived as having made it more difficult for them to achieve their goal.

https://monolith.law/reputation/request-deletion-google-search[ja]

Summary

The requirement of “clarity” in the Supreme Court decision of January 2017 (Heisei 29) did not appear from the original trial to the first trial, and even if the standard becomes stricter, it is inevitable for preliminary injunctions, but it is a simple deletion. The fact that such a strict judgment was made in the case has attracted attention, and as mentioned at the beginning, after this Supreme Court decision, it has been said that it has become difficult to delete search results related to arrest articles and arrest history in court.

Of course, the deletion of search results is judged as a result of comparing various circumstances, and even if we talk about criminal history and previous convictions, it varies depending on whether it was a prison sentence or non-prosecution. We need to pay attention to the accumulation of case law in the future to see how the deletion of search results for such criminal history and previous convictions is judged.

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.