Can an Email Address Alone Warrant Disclosure of Sender Information? Understanding the Case With an Unknown Name

If you have been defamed on the Internet, you can request the disclosure of the sender’s (perpetrator’s) information based on the Japanese Provider Liability Limitation Act. If the disclosure of information is approved, typically, details such as the sender’s name, address, phone number, and IP address will be made public.

However, in some cases, only the email address may be disclosed. Specifically, this can occur when registering for a website, where the person’s information such as their name is not provided, but their email address is. In such cases, would the email address fall under the category of ‘sender information’ in the Japanese Provider Liability Limitation Act?

We will explain the Intellectual Property High Court’s decision in March 2021 (Gregorian calendar year), which determined that it does fall under this category.

Provider Liability Limitation Act (Japanese Provider Liability Limitation Act)

The Provider Liability Limitation Act (official name: Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Disclosure of Sender Information) is a law that stipulates the responsibilities of providers and bulletin board administrators when issues such as defamation and copyright infringement occur on the Internet. This law stipulates the rights of providers to delete malicious posts that violate laws and various rights on their managed Internet services, and the extent to which they are held accountable for managing such posts.

Sender

Under Article 2, Paragraph 4 of the Provider Liability Limitation Act, a “sender” is defined as follows:

Article 2 of the Provider Liability Limitation Act (Definition)

4 Sender: A person who records information on the recording medium of the specific telecommunications equipment used by the specified telecommunications service provider (limited to those where the information recorded on the recording medium is sent to unspecified persons), or inputs information into the transmission device of the said specific telecommunications equipment (limited to those where the information input into the transmission device is sent to unspecified persons).

In other words, a “sender” refers to a person who posts defamatory content on the Internet or makes posts that infringe on copyrights.

Sender Information

Under Article 4, Paragraph 1 of the Provider Liability Limitation Act, a person whose rights have been infringed upon by the distribution of information through websites, etc., has the right to request the provider, etc., to disclose information about the sender who infringes on their rights. However, the “sender information” defined by Item 3 of the Ministerial Ordinance of the Ministry of Internal Affairs and Communications (“Ordinance Defining the Sender Information of Article 4, Paragraph 1 of the Law on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Disclosure of Sender Information”) includes the following:

1. Name or title of the sender or other person involved in the transmission of the infringing information
2. Address of the sender or other person involved in the transmission of the infringing information
3. Telephone number of the sender (added by the revised ordinance on August 31, 2020)
4. Email address of the sender
5. IP address and port number related to the infringing information
6. Identification code of the user of the Internet connection service from the mobile phone terminal/PHS terminal related to the infringing information
7. SIM card identification number related to the infringing information
8. Date and time (timestamp) when the infringing information was sent from the terminal, etc., in Items 5 to 7 to the equipment used by the disclosure-related service provider

Not only the name and address, but also the email address is included in the sender information.

Opinion Inquiry

To prevent the sender’s privacy, etc., from being unfairly harmed, the Provider Liability Limitation Law stipulates that when a provider, etc., receives a request for disclosure of sender information, they must hear the sender’s opinion on whether or not to disclose the information.

Article 4, Paragraph 2 of the Provider Liability Limitation Law

When a disclosure-related service provider receives a request for disclosure under the preceding paragraph, unless it is impossible to contact the sender of the infringing information related to the request for disclosure or there are other special circumstances, they must hear the sender’s opinion on whether or not to disclose.

The sender can express their opinion on the disclosure at this time.

Court Proceedings

The plaintiff, who distributes an email newsletter on their website, claimed that the content of their newsletter was being copied and published without permission on a website. They requested CyberAgent Inc., the defendant, to disclose the information registered by the site creator (hereinafter referred to as X) when creating the site, based on the Japanese Provider Liability Limitation Act.

Case Overview

The defendant is a corporation that operates media businesses through blogs and other internet services. They own the domain “amebaownd.com” and provide a service called “Ameba Ownd” that allows anyone to create a homepage or other media for free.

An individual, X, whose name is unknown, registered as a member eligible for the service on Ameba Ownd and created a website.

However, the articles posted on this website were copies of the email newsletter created by the plaintiff, which X made available for public transmission where an unspecified number of people could view them. In response to this, the plaintiff requested the disclosure of sender information, claiming that their copyright (right of reproduction, right of public transmission) had been infringed. The amount of content was substantial, amounting to 688 pages when printed on A4 paper.

The main point of contention was whether the email address used to register for the website (an email address provided when no personal information such as name is provided at the time of registration) qualifies as sender information, assuming that an email address generally can be sender information as seen in Ministry of Internal Affairs and Communications Ordinance No. 3.

The First Instance Court Rejected the Disclosure Request

The first instance court ruled that the purpose of explicitly mentioning “sender” in Article 2, Paragraph 4 of the Provider Liability Limitation Act is to clearly define those who place information that infringes on the rights of others in circulation. It also ruled that the “sender” in the “sender’s email address” in Ministry of Internal Affairs and Communications Ordinance No. 3 is limited to the person who recorded the information on the recording medium or input the information into the transmission device. Therefore, in cases where personal information such as name is not provided at the time of registration and an email address is provided instead, there remains a reasonable doubt as to whether the registrant truly provided their own email address. It is difficult to acknowledge that the registered email address belongs to the person themselves, so in this case, the email address does not qualify as “sender information”. The court rejected the disclosure request.

The court stated that the terms of service for the service in question stipulate that members must not post false information in the registration information they set when using the service. However, there is no clause specifying a method to confirm that the content of the registration information is the member’s own information. On the contrary, there is a provision that if there is any falsehood in the registration information or if the registered email address is judged to be non-functional, the defendant can take measures such as suspending the use of the service. From this, it can be inferred that there is a risk that members or those wishing to register for the service may register other people’s information or fictitious information.

Furthermore, considering that almost all of the email newsletters created by the plaintiff after the establishment of the site in question have been reprinted without permission, it can be inferred that the site was established for such illegal activities. Therefore, it is hard to deny the possibility that the registrant registered someone else’s email address or a fictitious email address when establishing the site.

The court can be said to have judged that information disclosure can only be permitted when it is clearly recognized as the sender to the extent that there is no reasonable doubt left. The court stated,

The plaintiff argues that if the “sender” is strictly required to be the poster, because internet service providers etc. cannot know the poster, it would be almost legally impossible for the “sender’s email address” to be disclosed. Therefore, the “sender” should not be limited to the strict sense of the sender, but should also include those who are likely to be the sender.

However, regarding the significance of the “sender’s email address” in Ordinance No. 3, it is as stated above, and even with the plaintiff’s above-mentioned point, it cannot be said to be a reasonable reason to adopt an interpretation that deviates from Article 2, Paragraph 4 in terms of the term “sender”. The plaintiff’s above argument should be regarded as a unique view and should not be adopted.

Tokyo District Court, June 25, 2020 Judgment

The court did not adopt the plaintiff’s argument that the “sender” should not be limited to the strict sense of the sender, but should also include those who are likely to be the sender, calling it a “unique view”.

Furthermore, the court did not respond at all to the plaintiff’s argument that the defendant had made an inquiry to the registrant, and if the registrant had no idea about it, it would be expected that such circumstances would be obtained as a result of the inquiry, but no such circumstances appeared at all.

The Appeal Court Made the Opposite Judgment

The plaintiff appealed the first instance court’s decision, dissatisfied with it. However, the appeal court ruled that the email address used to register for the website at the time of membership registration qualifies as “sender information”, and ordered Cyber Agent to disclose the sender’s information.

The appeal court pointed out that the information required to apply for registration for the service in question is an email address, an optional password, date of birth, and gender, etc. The registrant completed the preliminary registration by entering the information as an email address at the time of registration, and completed the formal registration by clicking on the URL included in the email sent by the defendant for formal registration.

Furthermore, the service in question is a service that can only be used by registered members who enter the password set at the time of registration, and the defendant (the defendant in the first instance, Cyber Agent) sent an email titled “Notice of Inquiry” to the email address of the information in question as an inquiry to the sender based on Article 4, Paragraph 2 of the Provider Liability Limitation Act, but there was no reply and no notification of a transmission error was received. Therefore, it is normally considered that the person who went through the registration procedure for the service in question and the user of the service are the same person.

The defendant argued that even if the email address of the registrant was truly registered at the time of the establishment of the site in question, there is a possibility that the ID and password were transferred afterwards. However, the appeal court stated that this is nothing more than an abstract possibility and does not affect the above-mentioned recognition judgment based on specific circumstances.

Taking these points into consideration, the appeal court stated,

It is reasonable to recognize that the person who went through the registration procedure, the member, and the person who made the post are all the same person, and there is no evidence to overturn this recognition.

Therefore, it can be said that the information in question is the email address of the person who made the post, and the information in question should be considered as “sender information” under Article 4, Paragraph 1 of the Act.

Intellectual Property High Court, March 11, 2021 Judgment

The court ruled that there is a reason for the plaintiff’s claim for disclosure of the information in question, and ordered the disclosure of the sender’s information.

Furthermore, the defendant argued about the possibility of multiple people managing and updating the service in question, but this is also nothing more than an abstract possibility and does not affect the recognition judgment based on the specific circumstances of the case. Even if the person who went through the registration procedure made the post in collaboration with others, it cannot be said that the information in question does not qualify as “sender information” under the Provider Liability Limitation Act, Article 4, Paragraph 1.

Summary: Japan’s IP High Court rules email qualifies as ‘Sender Information’

The decision of the Intellectual Property High Court, which is the appellate court, was that even in cases where only an email address is provided as personal information during member registration for website creation, without providing names and other information, the email address corresponds to the “sender information” in the Japanese Provider Liability Limitation Act.

Although the first instance and the appellate court recognized roughly the same circumstances, their judgments differed, making this an interesting case. It can be said that the appellate court’s decision was based on more specific circumstances, and it is believed that it can serve as a reference for similar cases in the future.

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.