What is the Standard Compensation Claim for Defamation of Honor?
When defamation is recognized, the victim is granted the right to claim damages against the perpetrator. The core of these damages is compensation for emotional distress.
So, how much can be granted, and what are the calculation standards? Based on actual case examples, we will explain the ‘market price’ of compensation for emotional distress, which is said to be increasing in recent years.
https://monolith.law/reputation/defamation[ja]
Compensation for emotional distress is,
“Compensation for mental damage, not material damage, in other words, reparation for the pain inflicted on the inner heart”
Supreme Court of Japan, February 22, 1994 (Gregorian calendar year)
Although it is defined as such, it is difficult to objectively and quantitatively grasp the degree of suffering. The court makes a decision considering various elements.
Since the elements to be considered are not disclosed, and there is no need to show the basis for recognizing the amount of individual compensation for emotional distress, it is difficult for us as lawyers to definitively forecast the amount of compensation for emotional distress.
However, by looking at what elements are emphasized in past case examples and how much compensation for emotional distress is recognized in what cases, it is possible to make some predictions.
How to Calculate Damages for Emotional Distress
There are several factors to consider when calculating damages for emotional distress, but they can generally be categorized into the following seven elements:
- The victim’s age, occupation, and background
- The victim’s social reputation
- The extent of the disadvantage suffered by the victim
- The method of the harmful act and the extent of its spread as a result
- The maliciousness of the harmful act
- The circumstances leading to the defamation
- The recovery measures taken after the defamation
It is believed that the court compares and weighs these elements to calculate the damages for emotional distress.
In the book “Calculating Damages for Defamation” (Gakuyo Shobo: Moto Nishiguchi, Shoichi Kogano, Noriyuki Sanada), the following calculation formula is proposed:
Median of Victim Attributes ± Propagation Strength/Influence ± Maliciousness of the Harmful Act
In other words, the calculation standard is based on “who was defamed,” “in what way,” and “how malicious” the defamation was.
In this book, the “victim attributes” are expressed as follows:
“Organization” = “Suspect/Defendant/Convict” > “University Professor/Doctor/Lawyer” > “Public Figure” > “Celebrity” = “Corporate Representative” > “General Public”
That is how it is expressed.
How to Claim Damages for Defamation
When you are defamed, the first thing you need to do is to preserve any objects or evidence. For example, if you are defamed on Twitter, you can take a screenshot of the tweet and save it. If you receive defamatory remarks from a specific person, you can record the conversation. Furthermore, if the defamation occurs online, it is necessary to identify the malicious poster.
To identify the person, you need to request the site operator to disclose the poster’s IP address. It is possible to resolve the issue through a settlement meeting with the poster, but if a settlement cannot be reached, you can file a civil lawsuit and claim damages.
Now, let’s explain the amount of compensation for defamation, using actual cases as examples.
Cases of Defamation Against Self-Defense Officials
Reputational Damage to Individuals and Compensation for Emotional Distress
How much compensation for emotional distress is recognized in cases of defamation on the Internet?
The first case we will discuss involves an anonymous post on the 2channel bulletin board. The post used keywords such as “sexually transmitted disease” and “toilet” in reference to a specific individual (a former male Self-Defense Force officer), implying that the officer was a target of male sexual intercourse and had contracted multiple sexually transmitted diseases.
The Court’s View
On September 8, 2015 (Heisei 27), the Tokyo District Court considered this case and noted the following factors:
- The plaintiff is a former Self-Defense Force officer who has been engaged in publishing activities after retirement.
- Although the post appears to be written in the guise of “let’s stop this kind of defamation,” it is merely a disguise.
- The prominence of the 2channel site and the large number of viewers.
- The fact that the post in question was only made once.
Considering these factors, the court awarded 800,000 yen as compensation for emotional distress.
Rejection of the Defense’s Argument for Contributory Negligence
The defendant argued for “contributory negligence,” claiming that the plaintiff was at fault. In this case, the “plaintiff’s fault” refers to the fact that the plaintiff left the post unattended for a long period and did not make any rebuttals.
“Contributory negligence” is a logic used in traffic accident lawsuits to reduce the amount of damages, such as when a pedestrian is hit by a car and the pedestrian is found to have ignored a traffic signal. However, in this case, the court completely rejected this argument.
Examples of False Accusations of Involvement with Organized Crime Groups
Reputational Damage to Companies and Individuals on Websites
This is a case where a corporation and two of its officers were falsely accused on a website of being involved with organized crime and antisocial forces. Specifically, posts were made claiming that an individual, who is an officer of the company, was involved in numerous crimes and fraudulent activities, such as:
- Meeting with members of organized crime groups at a hotel in Shimbashi
- Engaging in intimidation activities at the request of organized crime members
- Illegally obtaining a list of Self-Defense Force members to conduct real estate transactions
- Engaging in fraudulent business practices such as dating scams
- Suppressing investigations from the police and consumer affairs centers regarding fraudulent business practices such as dating scams
- Using embassy privileges to hide funds and evade taxes
It also appears that surreptitiously taken photos were posted.
The Court’s View
On January 29, 2015 (Heisei 27), the Tokyo District Court stated,
“In calculating the amount of damages, it is appropriate to make an individual and concrete judgment by considering various circumstances such as the content of the defamation, the method and manner of expression, the range and manner of dissemination, the circumstances leading to the dissemination, the attributes of the perpetrator and the victim, the content and degree of the disadvantage suffered by the victim, and the possibility of restoring the victim’s reputation.”
Tokyo District Court, January 29, 2015 (Heisei 27) Judgment
and acknowledged the following claims for damages:
- For the company: “Considering all the circumstances revealed in this case, it is recognized that the plaintiff company has suffered intangible damage due to the loss of its credibility,” and awarded damages of 800,000 yen.
- For the individuals: One person was awarded 500,000 yen as “an amount of money to compensate for the mental damage,” and another person was awarded 300,000 yen in damages.
Strictly speaking, “consolation money” is for mental damage and is only recognized for individuals who have a psyche. However, in the case of companies, “intangible damage” is recognized, and consolation money is calculated considering the same factors as in the case of individuals. The 800,000 yen in damages for the company is, strictly speaking, not consolation money, but this “intangible damage”.
https://monolith.law/reputation/honor-infringement-and-intangible-damage-to-company[ja]
The Scale of the Website Also Affects the Amount of Damages
The plaintiffs claimed a high amount of 38 million yen in total for the company and individuals, and argued the following reasons:
“The contents of the posts were spread on the Internet through ‘2channel’ and ‘Yahoo! Chiebukuro’, etc., damaging the plaintiffs’ reputation and credibility, significantly lowering their social evaluation, and the posting of the photos in this case poses a risk of defamation against the plaintiffs by an unspecified number of third parties on the Internet in the future, and the plaintiffs’ mental distress is so severe that it is difficult to recover.”
Tokyo District Court, January 29, 2015 (Heisei 27) Judgment
In response to this, the court stated:
“Although it cannot be denied that there is a possibility of the contents being spread, there is no sufficient evidence to acknowledge that this has actually spread, and moreover, it is hard to say that the website in question is a major source of social influence, considering its number of accesses (20,000 per day according to the defendant’s testimony).”
Tokyo District Court, January 29, 2015 (Heisei 27) Judgment
As stated above, the court acknowledged the amount of damages. There may be a debate about whether a site with 20,000 accesses per day has a small “social influence”, but it can be said that the court has indicated that the scale of the website, such as the number of accesses, is a factor to consider when calculating the amount of damages.
Examples of Identity Spoofing
We will introduce some examples of defamation victims on the internet.
A man living in Nagano Prefecture filed a lawsuit in the Osaka District Court, claiming that his reputation was damaged by a post made by someone impersonating him on the GREE bulletin board.
Court’s View
In the judgment, it was recognized that the plaintiff’s right to reputation was violated, and the damage was set at 600,000 yen for consolation money.
The posts are all content that insults and abuses others, and it can be said that they give a misunderstanding to third parties that the plaintiff is a person who insults and abuses others without basis, thereby lowering the plaintiff’s social evaluation.
Osaka District Court Judgment, August 30, 2015 (2015)
The issue in this case is the consolation money for the misunderstanding received from the people around the plaintiff due to the damage of “impersonation”.
https://monolith.law/reputation/spoofing-dentityright[ja]
It can be said that the damage is greater in the case of “impersonation” than when an anonymous third party simply writes a bad word. In terms of the above seven elements, it is believed that this was a case where the degree of disadvantage suffered by the victim and the maliciousness of the offending act were high.
Case Study: Compensation for a Newspaper Advertisement Titled “Habitual Liar”
In a lawsuit where former House of Representatives member Muneo Suzuki sought damages from Shinchosha, the publisher of “Shukan Shincho”, for defamation in a newspaper advertisement titled “Habitual Liar”, the Tokyo High Court overturned the first-instance judgment of the Tokyo District Court on December 25, 2003 (Heisei 15), which ordered Shinchosha to pay 1 million yen. The court dismissed the former lawmaker’s claim, stating that there was a reasonable reason to believe that he had lied.
The issue was the headline, “Muneo Suzuki, the habitual liar who made Makiko Tanaka shed demon’s tears”. The Tokyo High Court, the second instance, concluded that “although the expression is somewhat tasteless, it does not constitute a personal attack that deviates from criticism”. What is interesting here is that in the defamation calculation formula mentioned above, the amount recognized by the Tokyo District Court for the defamation committed by the weekly magazine against the defendant, who is a “public figure”, was only 1 million yen. It is questionable why the “public figure” seems to be highly valued in other cases.
Case of Defamation Against a 19-Year-Old Daughter
A lawsuit was filed by the eldest daughter (19) of Mr. Takashi Uemura (58), a former reporter for the Asahi Shimbun, against a man in his 40s from the Kanto region. The man had posted a photo of her along with defamatory comments on Twitter, causing her mental distress.
The defendant had obtained a photo of Mr. Uemura’s daughter from a different source and posted it on Twitter, labeling her as “the daughter of Takashi Uemura, who fabricated the Asahi Shimbun’s comfort women story.” He also mentioned the name of the high school she was attending at the time and her real name, and after referring to her grandmother and mother, he wrote, “Raised by a father who is an anti-Japanese fabrication agent, she is a thoroughbred anti-Japanese. She will surely become a threat to Japan in the future.”
Court’s View
On August 3, 2016 (Heisei 28), the Tokyo District Court fully accepted the plaintiff’s claim and ordered the defendant to pay 1.7 million yen (of which 1 million yen was for emotional distress).
The defendant attacked the personality of the minor daughter out of resentment for the actions her father took in his work, which is malicious and highly illegal… The image captured by a screenshot of the post in question remains on the Internet, and the state of rights infringement continues… The compensation amount should be 2 million yen, which exceeds the plaintiff’s claim.
Tokyo District Court, August 3, 2016 (Heisei 28) Judgment
In this case, although the victim is a minor and a private individual, the fact that she is the daughter of the defendant’s original target and that an unrelated minor was involved was evaluated as malicious.
Of the seven factors mentioned above, the “degree of disadvantage suffered by the victim” and the “maliciousness of the perpetrator’s actions” seem to have been particularly significant in this case.
Case of a Researcher Accused of Data Fabrication
The plaintiff claimed that their reputation was defamed by documents posted on the defendant’s website, and sought damages, deletion of the documents, and the publication of an apology advertisement. Conversely, the defendant also claimed that their reputation was defamed by documents and lectures posted on the plaintiff’s website, and made similar demands.
Court’s View
On November 8, 2012, the Tokyo District Court acknowledged that “The defendant’s criticism that the plaintiff fabricated or altered research data in an article submitted to an academic journal, and the posting of such criticism on their website, has lowered the plaintiff’s social reputation.” The court ordered the defendant to pay 3.3 million yen (3 million yen in damages and 300,000 yen in attorney fees), remove the documents from their website, and publish an apology advertisement. As for the counterclaim, the court dismissed it, stating, “The plaintiff’s aforementioned post was a criticism from an academic standpoint and does not lower the defendant’s social reputation.”
The victims in this case were “university professors, doctors, and lawyers,” and the incident took place online. Although it was not anonymous, it was not judged to be within the scope of fair criticism. The accusation of fabricating or altering research data could significantly lower social reputation, and the maliciousness of the offending act was likely highly evaluated.
https://monolith.law/reputation/solatium-libel-maliciousness[ja]
Conclusion
While there are indications that the amount of compensation for emotional distress that can be claimed against the perpetrator is increasing, it can still be said that the amount is relatively low compared to the actual damage suffered.
Even if defamation is recognized and a claim for damages is possible, the amount of money that remains in the hands of the victim is not particularly high. As compensation for the “pain inflicted on the inner self”, it can be said to be insufficient.
However, in principle, there is no cost burden on the victim’s side if they succeed in identifying the perpetrator and claiming damages.
https://monolith.law/reputation/reputation-lawyers-fee[ja]
In the case of “an instance of impersonation on an internet bulletin board”, the compensation for emotional distress was 600,000 yen, but the total amount of damages, including attorney fees and investigation costs, was 1,306,000 yen. For the average citizen, being served a lawsuit from the court, appearing in court, being found guilty of defamation, and having to pay 1,306,000 yen in damages is a significant blow. Furthermore, if they are criminally prosecuted, they will be punished and will have to pay a fine.
If you wish to pursue the responsibility of the perpetrator who repeatedly defames and slanders, do not want to give in, and wish to make the perpetrator reflect on their actions, please consult with an experienced attorney. You can also get detailed explanations about the prospects and procedures of the lawsuit.
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Category: Internet
