What is Defamation of Honor? Past Precedents and How to Deal with Writings
Being insulted by others with derogatory terms such as “idiot” or “ugly” would naturally upset anyone. If such slander continues online, it’s only natural to want to do something about it.
Such slander, often in the form of insults, is legally categorized as an infringement of “honor feelings (subjective honor)”.
While this may sound like a complex legal term, the key point is that although the term “honor” is included, it does not constitute “defamation of honor” under Japanese law.
Difference between “Defamation” and “Infringement of Honor”
“Defamation,” a well-known legal term, is defined in Article 230 of the Japanese Penal Code (刑法230条).
Article 230 (Defamation)
Anyone who publicly states a fact and defames another person’s reputation, regardless of whether the fact is true or not, shall be punished by imprisonment for up to three years or a fine of up to 500,000 yen.
Legally, the term “honor” in this context refers to social reputation (social evaluation) received from society.
For example, if an individual is said to have embezzled funds from a previous employer, they may be perceived by others as a risky hire, which could hinder their social activities such as job hunting.
Thus, lowering someone else’s “social evaluation” is a requirement for defamation.
Related article: What are the conditions for suing for defamation? Explaining the requirements and average compensation [ja]
However, in everyday language, “honor” has another meaning.
As mentioned at the beginning, if you are insulted with words like “idiot” or “ugly,” it hurts your self-esteem, and in that sense, you would feel that your “honor” has been damaged.
Acts that harm this “subjective honor,” or self-evaluation, constitute “infringement of honor.”
However, if the act merely causes discomfort and does not harm the other person’s self-esteem, it cannot be considered illegal “infringement of honor.”
Subjective Honor and Social Honor
So, what exactly is this “subjective honor”?
For example, even if someone is insulted as an “idiot” or “ugly,” third parties usually do not think that the person lacks the intellectual abilities or knowledge that people should have, or that they are so unattractive that they are hard to look at. They simply think, “A fight has started,” or “They are being bothered by a troublesome person.”
Therefore, such simple insults do not necessarily lower the “social” evaluation of the person from the outside.
However, this does not mean that one has to endure such insults.
In such cases, even if the criminal “defamation” is not established, it can be considered an “infringement of honor (subjective honor)” and can be illegal in civil law.
Criminal Illegality (Crime) and Civil Illegality (Tort)
The terms “criminal” and “civil” may be a bit confusing, but when you are subjected to an “illegal” act, the “illegality” can be:
- Criminal illegality (= “crime”), in which the perpetrator is punished, and at the same time, the act is civil illegality (= “tort”), and claims for damages may be recognized
- Not criminal illegality (= crime), so the perpetrator is not punished, but the act is civil illegality (= “tort”), and claims for damages may be recognized
There are these two cases.
Infringement of Honor is not a “Crime” but can be a “Tort”
And,
- “Defamation” that lowers “social evaluation” is illegal in criminal law and also illegal in civil law
- “Infringement of honor” that hurts “subjective honor” is not illegal in criminal law, but can be illegal in civil law
That’s how it is.
In the case of online posts, if it is illegal in civil law, it is possible to request the disclosure of the IP address to identify the other party and then claim damages from the poster.
However, there will be no arrest or punishment by the police.
By the way, although it’s a bit complicated, there is also “opinion-based defamation” that lowers social evaluation without stating specific facts.
Like “infringement of honor,” it does not fall under the Penal Code’s “defamation,” but it can be illegal in civil law.
Related article: What are the requirements for defamation involving opinions or reviews? [ja]
By the way, the same applies to privacy violations.
Privacy violations can be illegal in civil law, but there is no criminal law provision that prohibits privacy violations themselves, and unless they meet the requirements for crimes such as insult or defamation under the Penal Code, they are not considered “crimes.”
Criteria for Determining the Illegality of “Infringement of Honor”
Is the “Insane” Post on 2channel Illegal?
The principal of “A Academy”, a school corporation that operates a school for children with developmental disabilities from first grade to third grade high school, requested the disclosure of sender information from 2channel after a post was made on the “A Academy Part 2” thread stating, “What’s with this sane thread? The principal of A Academy is clearly insane”.
Furthermore, based on the IP address and other information obtained through the request for disclosure of sender information from 2channel, a request was made for the disclosure of sender information from the transit provider DION (now au one net). However, DION refused this request, leading to a lawsuit.
Please note that a “request for disclosure of sender information” refers to a request to identify the poster of a comment.
Related article: What is a request for disclosure of sender information? A lawyer explains the method and points to note [ja]
The Supreme Court’s Decision
Firstly, the Supreme Court, in its judgment, stated that even in cases of “infringement of honor”, the infringement of the defendant’s personal interests can only be recognized when it is deemed to be an insult that exceeds the limits acceptable in societal norms. The court supported the appellate court’s decision to allow the disclosure of sender information.
On the other hand, the court stated that the post in this case, which used the term “insane”, constitutes an “infringement of honor”, but it is not immediately clear that it is an insult that exceeds the limits acceptable in societal norms. Therefore, it concluded that DION, which did not comply with the request for information disclosure outside of court, cannot be said to have committed a serious negligence.
Under the Provider Liability Limitation Act, the presence of serious negligence on the part of the provider is a requirement for recognizing the provider’s liability for damages.
As a result, the part of the appellate court’s decision that recognized DION’s serious negligence was overturned, and the plaintiff’s claim for damages against DION was not recognized.
Judgment text: Supreme Court Judgment of April 13, 2010 (Heisei 22), Minshu Vol. 64, No. 3, p. 758 [ja]
Based on the above, it can be said that not all mere insults (infringements of honor) are illegal, and in order to be considered illegal, the degree of infringement must “exceed the limits acceptable in societal norms”.
Furthermore, according to this precedent, if the expression “insane” is used only once in a post, it cannot be said that the provider has committed a serious negligence in determining whether the requirements for disclosure of sender information outside of court are met, and a claim for damages against the provider will not be recognized.
What Does “Exceeding the Limits Acceptable in Societal Norms” Mean?
There is a case in which the wording of an article about the history of a lawsuit between the plaintiff and the defendant, posted on a website, was in question (Tokyo District Court, June 16, 2015 (Heisei 27)).
The plaintiff claimed that his social reputation was lowered by numerous insults such as “swindler”, “gang of villains”, “stalker-like”, and “not in a normal mental state”, and demanded:
- Deletion of the posted part based on the right of honor or personality rights
- Compensation for damages (consolation money) based on the illegal act
- Publication of a notice on the same person’s website as a measure to restore honor
The Tokyo District Court ruled that these expressions “exceed the legitimate range as opinions or criticisms on the propriety of the plaintiff’s litigation actions and amount to aggressive expressions against the plaintiff’s personality”. The court judged them to be “illegal acts that infringe on the plaintiff’s feelings of honor to an extent that cannot be overlooked in societal norms”, recognized them as illegal “infringements of honor”, and ordered the defendant to pay 300,000 yen in damages and delete the article.
According to this precedent, even on your own website, if you repeatedly insult others, it may be judged as “infringing on feelings of honor to an extent that cannot be overlooked in societal norms”, and may be considered a civil tort.
Infringement of Honor in Requests for Disclosure of Sender Information
Another Case Where Disclosure of Sender Information Was Granted
There was a case where a woman claimed that her honor was infringed upon by a post on 2channel, and she made a request for the disclosure of the sender’s information in order to claim damages from the poster.
This woman identified the transit provider through the IP address disclosed by 2channel and sought the disclosure of the sender’s information outside of court.
However, when the transit provider refused, she filed a lawsuit against the provider, requesting the disclosure of the sender’s information.
The Tokyo District Court ruled that posts such as “ugly”, “promiscuous”, “goggle-eyed hag”, and “stupid woman” constituted illegal “infringement of honor”, and ordered the transit provider to disclose the sender’s information.
When a woman is insulted on an internet bulletin board accessible to an unspecified number of people by an anonymous person with derogatory evaluations such as “ugly”, “hag”, or “stupid woman”, it is clear that the woman’s honor is harmed. Considering that there is no reason for her to tolerate such insulting expressions, even if there are no specific facts or grounds to support these evaluations in the posts, they should be deemed to harm the plaintiff’s honor beyond socially acceptable limits.
Tokyo District Court, November 18, 2016 (Heisei 28)
Therefore, it can be said that if you continue to post insulting comments such as “ugly”, “hag”, and “stupid woman”, it may be considered an illegal “infringement of honor”, and a request for the disclosure of sender information may be granted.
How to Deal with Posts that Infringe on ‘Honor and Emotions’
On the internet, there are two main ways to deal with posts that illegally infringe on your ‘honor and emotions’:
- Request for deletion of the post itself
- Claim for damages against the poster
Request for Deletion of the Post Itself
One of the responses to a post that infringes on personal rights and constitutes an illegal ‘infringement of honor and emotions’ is to request its deletion.
A request for deletion is granted when the degree of infringement of the personal rights of the victim of defamation is compared with the freedom of expression of the poster, and the former is considered more problematic than the latter.
Firstly, a deletion request can be made to the administrator of the bulletin board or blog (Content Service Provider). However, if the number of posts is enormous and it is not realistic to deal with each site individually, it is more efficient to choose a search engine as the opponent.
Claim for Damages Against the Poster
If the ‘infringement of honor and emotions’ exceeds the socially acceptable level and constitutes a tort, you can claim damages against the person who made the post.
In order to make a claim for damages, it is necessary to identify the other party in the preliminary stage. By making a request for disclosure of sender information, you can disclose the information of the poster identified by tracing access logs such as IP addresses.
However, if the transit provider is a mobile carrier, the storage period for the IP address of the terminal that made the post is very short, about three months, so prompt action is required.
It should be noted that the amount of consolation money recognized for illegal ‘infringement of honor and emotions’ is considerably less than in the case of defamation.
Conclusion: If You’re Struggling with ‘Infringement of Honor’, Consult a Lawyer
There is no reason why you should have to endure repeated insults such as “idiot” or “madman” posted on message boards and the like.
Even if the expressions used do not qualify as ‘defamation’ because they are not recognized as lowering social evaluation, there is a possibility that you can identify the sender and seek damages based on tort for ‘infringement of honor’. Don’t suffer in silence, consult with an experienced 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, overlooking information related to reputational damage and slander spread on the Internet can lead to serious harm. Our firm provides solutions for managing reputational damage and online crises. Details are provided in the article below.
Areas of practice at Monolith Law Office: Identification of slander posters [ja]
If you would like to learn about the content of this article through a video, please watch the video on our YouTube channel.
Category: Internet
