What are the 'Legal Measures' Against Defamation? An Explanation by a Lawyer

Defamation on the internet, such as on social media and anonymous bulletin boards, shows no sign of abating.

Recently, there have been news reports of celebrities, believed to be victims of such defamation, committing suicide, which has heightened the call for decisive measures against defamation. There are also instances where information about legal actions taken against those who have defamed others is being publicly disclosed on social media.

Seeing these developments, many of you may have developed an interest in measures against defamation.

In this article, we will explain the legal measures and strategies to take when you are defamed on the internet.

Criminal Penalties Likely to be Imposed for Defamation

Defamation on the internet, such as on SNS and anonymous bulletin boards, can potentially be subject to several crimes.

Among them, we will explain the crimes of “Defamation,” “Insult,” and “Intimidation,” which are particularly likely to be charged in cases of online defamation.

Defamation

Defamation is a crime that is established when facts are publicly stated and posts are made that could lower a person’s social status or reputation.

It is personalityized by the fact that it is established regardless of the truth of the posted facts. And, under Article 230 of the Japanese Penal Code, if defamation is established, it is stipulated that “imprisonment for up to 3 years or a fine of up to 500,000 yen will be imposed.”

Insult

Insult is a crime that is established when a person is publicly insulted without stating specific facts.

For example, abstract defamation using abusive language and insults such as “idiot” and “stupid” may be subject to the crime of insult. Under Article 231 of the Japanese Penal Code, if an insult is established, it is stipulated that “detention or a fine will be imposed.”

Intimidation

Intimidation is a crime that is established when a post is made threatening to harm the life, body, freedom, reputation, or property of another person.

Even if you don’t actually intend to kill, writing something like “I’ll kill your wife” can establish the crime of intimidation. Under Article 222 of the Japanese Penal Code, if intimidation is established, it is stipulated that “imprisonment for up to 2 years or a fine of up to 300,000 yen will be imposed.”

How to Remove Defamatory Comments

When defamatory comments are posted on the internet, the first thing to consider is requesting their removal.

If defamatory comments remain visible to the public on the internet, not only does the person involved suffer significant emotional stress, but they may also experience difficulties at work if the comments are seen by acquaintances. The damage can escalate day by day.

There are two ways to request the removal of defamatory comments:

• Request the operator of the social networking site (SNS) or bulletin board where the defamation was posted to remove it
• File a provisional disposition with the court to request the removal of the post

Directly Requesting the Operator to Remove the Comments

The simplest method is to directly request the operator of the SNS or bulletin board to remove the defamatory comments. Some bulletin boards may readily comply with removal requests from the person involved.

However, even if a removal request is made by the person involved, it is not uncommon for SNS or bulletin boards to refuse immediate removal, except for comments that clearly pose a threat, such as a threat of a crime.

The reasons for this include the possibility that the comments are protected by freedom of expression and that hasty removal is undesirable, and the belief that the value of the bulletin board is enhanced by including critical comments.

It’s good to be aware that even if you request the operator to remove the comments, they may not accept it. Therefore, it may be quicker and more certain to use the court’s provisional disposition procedure from the start when requesting the removal of a post.

Filing a Provisional Disposition with the Court to Remove the Post

A provisional disposition procedure is, simply put, a simplified court procedure that allows for a quick provisional judgment by the court. In the case of defamation removal, a conclusion is usually reached within 1 to 2 months of filing the provisional disposition.

If a provisional disposition decision that approves the removal is issued, the operator will have to remove the defamatory comments in accordance with the decision.

Also, the average attorney’s fees for using the provisional disposition procedure are said to be:

A retainer fee of about 300,000 yen, and a contingency fee of about 300,000 yen

https://monolith.law/reputation/reputation-lawyers-fee[ja]

In this procedure, it is possible to request both the disclosure of the poster’s IP address and the removal of the post at the same time. The above-mentioned fee is for both. However, the cost will naturally vary depending on the content and volume of the post in question.

Furthermore, if the operator is a foreign corporation, it may take more time and cost more than usual due to the need for document translation and delivery.

For more details on the removal provisional disposition, please refer to the following article.

Related article: How to use the “provisional disposition”, a simpler method than litigation, to remove defamatory articles?[ja]

Legal Actions Against Defamatory Posters

Many people may want to take some form of legal action against those who post defamatory comments, not just remove the comments themselves.

Simply removing defamatory comments may lead to the same person repeatedly posting defamatory content. Therefore, we will explain the possible legal actions that can be taken against those who post defamatory comments below.

① Identifying the Poster

Before taking legal action against the author of defamatory posts on the internet, it is necessary to identify the poster’s real name and address. This is because such posts are often made using pseudonyms, such as nicknames or anonymous handles.

The most common method of identifying a poster is through the courts. This is because the process involves the disclosure of important personal information such as the poster’s real name and address, and site operators often refuse to disclose this information without a court order or judgment.

The series of procedures to identify the poster is called a ‘request for disclosure of sender information’. This process generally involves two main steps:

• Requesting the disclosure of the IP address from the operator of the bulletin board or similar platform
• Requesting the disclosure of subscriber information from the Internet Service Provider (ISP), such as a mobile phone company

Request for IP Address Disclosure

First, a request for the disclosure of the IP address is necessary. An IP address is like an address on the internet associated with a post, and it is a code used to identify a device connected to the internet.

Once the IP address is disclosed, it is possible to identify the ISP that the poster used to connect to the internet.

While it is possible to directly request the site operator to disclose the IP address, it is recommended to apply for a provisional disposition through the courts to ensure disclosure.

Prohibition of Log Deletion

The connection logs required for the disclosure request to the ISP have a limited retention period, and if these logs are deleted, it often becomes impossible to identify the poster.

The retention period varies by provider, and in the case of mobile phone companies, the connection logs are often deleted about three months after the post date.

Therefore, it is recommended to first request the provider to prohibit the deletion of logs.

In many cases, it is possible to get the provider to comply by notifying them that you will be requesting the disclosure of the poster’s name and address through the courts and asking them to retain the logs without deleting them for a while. This does not require a provisional disposition procedure.

As such, due to the strict time constraints of a request for disclosure of sender information, it is safer to use a legally binding provisional disposition procedure to request the disclosure of the IP address.

Request for Disclosure of Sender Information

Once the IP address is disclosed, you can request the disclosure of the sender (subscriber) information from the ISP identified from the IP address.

When a poster posts a defamatory comment, they must go through an ISP.

Unless the ISP is a free service like a manga cafe’s internet or public WiFi, it should have a contract with the poster because it is a paid service. Therefore, by requesting the disclosure of the sender (subscriber) information, it is possible to identify personal information.

However, the disclosure of subscriber information is highly confidential personal information of the ISP’s customers.

It is rare to get disclosure through an out-of-court request, and it is usually necessary to initiate a regular civil lawsuit to request disclosure. This disclosure of subscriber information takes about six months.

For more details on the request for disclosure of sender information, please refer to the following article.

Related article: What is a request for disclosure of sender information? A lawyer explains the method and points to note[ja]

②Demanding Compensation from the Poster

Once the poster has been identified, you can proceed to demand compensation. In addition, you may also contact them and have them sign a pledge not to slander or defame again.

For more detailed information on the standard compensation for defamation, please refer to the article below.

Related Article: What is the standard for compensation claims for defamation?[ja]

While you can directly demand compensation from the poster through certified mail, if you believe it will be difficult to resolve the issue through settlement negotiations, you may also choose to initiate a lawsuit demanding compensation from the outset.

If you decide to initiate a lawsuit for compensation, it will take approximately 6 months to 1 year to reach a resolution.

③Option to File a Criminal Complaint Against the Offender

Filing a criminal complaint on the grounds of defamation is also an option. In cases where defamation is established, not only can you make a claim for damages in civil court against the offender, but there is also a possibility that the offender may be held criminally liable for the crime of defamation (Japanese Defamation Law).

However, it should be noted that police often do not readily accept criminal complaints against offenders, so careful handling is necessary. When it comes to negotiating with the police, it is often quicker to resolve the issue by seeking the assistance of a lawyer who has extensive experience in handling defamation cases.

Conclusion: Consider Legal Action if You’re Struggling with Defamation

Experiencing defamation on the internet can cause significant emotional stress for the individual involved. Particularly, if your real name is exposed, you may feel your personal safety is at risk, making it crucial to respond promptly.

On the other hand, defamation often involves emotional conflicts between the victim and the perpetrator. If the victim directly demands the perpetrator, it may inadvertently escalate the situation.

If you are considering legal action against the perpetrator, we highly recommend seeking assistance from a specialized attorney as soon as possible.

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.