What Measures Can Be Taken If You Experience 'Baito-Tero' on SNS? Is Dismissal or Claiming Damages Possible?

With the proliferation of social media, there has been a surge in incidents where part-time employees at restaurants and other establishments post photos or videos of themselves engaging in inappropriate behavior on social media (commonly known as “baito-tero” in Japan). Once these photos or videos are uploaded to the internet, they can continue to circulate and cause controversy, even if the original poster deletes them. For instance, in June 2021 (Reiwa 3), a part-time employee at a Domino’s Pizza in Japan posted a video on Instagram of himself licking a shake directly from the spatula, which caused a significant backlash. This is just one example, and there have been many other instances of “baito-tero”.

In this article, we will explain what kind of sanctions can be imposed if an employee of your company commits “baito-tero”, based on Japanese law.

For more detailed information on how companies should respond when they face online backlash, please refer to the following article.

https://monolith.law/reputation/company-flaming-correspondence[ja]

What is Part-time Job Terrorism?

Part-time job terrorism, or “Baito Tero” in Japanese, refers to the act of part-time employees misusing store products or fixtures for pranks, capturing these antics in photos or videos, and posting them on social media platforms like Twitter. These pranks often involve unsanitary actions such as throwing food products into the trash or licking them, which can deter potential customers who see these images or videos. If these videos go viral and ignite public outrage, it can not only damage the company’s image but also have significant negative impacts on business operations, such as a decrease in sales or stock prices. In some cases, the damage can be so severe that it leads to the bankruptcy of the store.

To prevent part-time job terrorism, it is essential to conduct thorough training and education. Measures such as instructing on the precautions regarding the use of social media and prohibiting the bringing of smartphones into the store can also be effective. However, many instances of part-time job terrorism are carried out lightly, so it may be challenging to prevent them entirely.

What kind of sanctions can be imposed on part-time employees who commit ‘baito-tero’?

If ‘baito-tero’ actually occurs, is it possible to impose some kind of sanction on the part-time employee who caused it?

Termination and Contract Cancellation

In the case of employment contracts: Termination

If an employee’s actions fall under the grounds for disciplinary dismissal as stipulated in the employment regulations, they can be dismissed.

For example,

• An incident at a steakhouse in Tokyo where a part-time employee posted a photo on Twitter of himself inside the restaurant’s refrigerator
• An incident at a convenience store in Kanagawa Prefecture where a part-time employee posted a video on Twitter of himself spitting out ‘oden’

In these cases, it was reported that the employees were dismissed.

The Ministry of Health, Labour and Welfare’s model employment regulations state:

(Compliance Matters)
Article 11 Employees must comply with the following matters:

Do not engage in actions that harm the company’s honor or credibility.

About Model Employment Regulations | Ministry of Health, Labour and Welfare[ja]

It is possible to take disciplinary action if these clauses are violated. However, for industries and companies where “part-time terrorism” is a realistic concern, it would be advisable to include clauses that clearly apply to such situations in the employment regulations from the outset.

However, in the case of part-time employees, the damage caused by being dismissed may not be that significant. Therefore, it may be necessary to pursue civil and criminal liability further.

In the case of contract employees: Contract Cancellation

On the other hand, in the case of a contract of commission rather than an employment contract, the contract will be cancelled due to a violation of the contract of commission, not “dismissal”.

Generally, contract employees are legally based on a quasi-mandate contract and are required to perform their duties with “due care”. It can be argued that many cases of part-time terrorism violate this “duty of care”. However, as with employment contracts, it is better to include clauses that clearly apply from the outset in the contract.

Regarding the previously mentioned,

Incident at a steakhouse in Tokyo where a part-time employee posted a photo on Twitter of himself inside the restaurant’s refrigerator

After the dismissal, the criticized employee rebutted online, which further escalated the “flaming” involving the store. It is necessary to decide on a final measure to prevent such actions.

Damage Compensation Claims

It is possible to consider claiming damages against employees who have committed part-time job terrorism. Generally speaking, when it comes to claiming damages against employees, the principle of “liability limitation” based on the rule of good faith is considered, as employees have less financial resources compared to companies, and it would be harsh to allow the same damages against an equal power relationship. However, in the case of malicious part-time job terrorism committed intentionally, it is believed that there are many cases where a certain amount of damage claims are recognized even on this legal principle.

The scope of the damage would likely include the cost of the products used in the part-time job terrorism, the repair cost if the fixtures are broken, and the cost of disinfection or cleaning if necessary. These costs are clearly recognized as damages and are likely to be easily accepted.

However, the difficulty of proof increases for losses in business profits due to, for example, a decrease in sales or reputation, and a drop in stock prices. It is believed that there are few cases where a causal relationship between part-time job terrorism and losses in business profits or a drop in stock prices is recognized.

Furthermore, even if damages are recognized in a lawsuit, caution is necessary as there may be cases where the employee’s property is small and not all can be paid.

Crimes under the Penal Code

If part-time job terrorism (baito-tero) acts fall under crimes stipulated in the Penal Code, it may be necessary to consider seeking criminal proceedings through damage reports or accusations.

The potential crimes under the Penal Code that part-time job terrorism may fall under are as follows. Depending on the content of the part-time job terrorism, other crimes may also be applicable.

Defamation (Japanese Penal Code Article 230)

If it is recognized that “publicly indicating facts and defaming a person’s reputation,” it falls under the crime of defamation, and it is stipulated that “imprisonment for up to three years or a fine of up to 500,000 yen” (Japanese Penal Code Article 230).

There are exceptions to the crime of defamation that are recognized as not constituting a crime, such as “if it pertains to facts related to public interests and its purpose is solely to serve the public interest, it will not be punished if it is recognized and proven to be true” (Japanese Penal Code Article 230-2). However, it is unlikely that part-time job terrorism acts fall under this exception.

For more information about defamation, please refer to the following article.

https://monolith.law/reputation/defamation[ja]

Insult (Japanese Penal Code Article 231)

If “a person is publicly insulted without indicating facts,” it falls under the crime of insult, and it is stipulated that “detention or a fine” (Japanese Penal Code Article 231). If it is recognized that the social reputation or evaluation of a company has been damaged by photos or videos posted in part-time job terrorism, there is a possibility that it falls under this crime of insult. The difference from the crime of defamation is that it constitutes a crime “even without indicating facts,” in other words, it applies even if the act of insulting is carried out with abstract wording, not objective evaluation.

Obstruction of Business by Fraud (Japanese Penal Code Article 233)

If part-time job terrorism acts are recognized as “spreading false rumors or using deception to defame a person’s credit or obstruct their business,” they fall under the crime of obstruction of business by fraud, and a sentence of up to three years imprisonment or a fine of up to 500,000 yen is imposed. There is also a case where a former part-time employee who posted a video of returning sliced fish thrown in the trash to the cutting board at a major conveyor belt sushi chain was sent documents on suspicion of obstruction of business by fraud.

Obstruction of Business by Force (Japanese Penal Code Article 234)

According to Japanese Penal Code Article 234, “those who obstruct a person’s business by force shall be punished by imprisonment for up to three years or a fine of up to 500,000 yen.” There was a case where a man who repeatedly touched the oden at a convenience store with his fingers was arrested on suspicion of obstruction by force, although he was not an employee.

Destruction of Property (Japanese Penal Code Article 261)

If products or fixtures in the store are broken in part-time job terrorism videos, there is a possibility of being charged with the crime of destruction of property. The crime of destruction of property is stipulated in Japanese Penal Code Article 261, and it is stipulated that “those who damage or injure the property of others shall be punished by imprisonment for up to three years or a fine of up to 300,000 yen or a fine.” Although it was not part-time job terrorism, but an incident caused by a customer, there was a case where a person was arrested for the crime of destruction of property for taking pictures inside the ice cream case at a supermarket or convenience store.

Summary

Part-time job terrorism, or “baito tero”, can pose a significant threat to businesses, particularly those operating restaurants and convenience stores. Once inappropriate photos or videos are posted, they often remain on the internet for a long time, and restoring trust can take a considerable amount of time. If you fall victim to “baito tero”, you can not only dismiss the employee involved but also file a claim for damages. In some cases, criminal liability may also be pursued. It is crucial to preserve as much evidence as possible and consult with a lawyer immediately.

Introduction to Our Firm’s Measures

Monolith Law Office is a legal office with high expertise in both IT, particularly the Internet, and law. Information related to reputational damage and slander spread on the Internet, such as part-time job terror videos, is causing serious harm as a “digital tattoo”. Our firm provides solutions for dealing with these “digital tattoos”. Details are provided in the article below.