Computers, Privacy & the Constitution


-- By TakahiroOishi - 24 Apr 2018


It is obvious today that search engines play a crucial role in information distribution on the Internet. In the meantime, however, the semi-permanence of and easy accessibility to each online expression have increasingly caused severe exposure of one’s privacy online. In light of this situation, the European Court of Justice held in Google Spain v. AEPD (*1), the landmark case in this legal arena, that a citizen had a right to privacy in his past economic troubles, accepting in effect the “right to be forgotten”, followed by the effectuation of the General Data Protection Rule, which explicitly stipulates the “right to erasure”. In contrast, the United States has historically put greater emphasis on freedom of speech than privacy(*2). Speaking of Japan, many decisions by lower courts had been made since 2014 in response to claims against search engine operators for removal of particular search results which contained plaintiffs’ privacy information, but the decisions by the courts were divided over this issue until the first decision by the Supreme Court (the “Decision”)(*3) was made in January 2017. In the case presented to the Supreme Court, the plaintiff claimed against Google for the removal of the search results (titles and snippets) of the websites which had uncovered his arrest record for child prostitution and pornography three years prior to the filing of lawsuit. The court rejected the claim in conclusion, and therefore, the Decision was widely broadcast as “the first decision by the Supreme Court which refused the right to be forgotten”. Below are some of the key points of this landmark decision in Japan.


First of all, the court showed, in its reasoning, one answer to the issue of whether (and in what sense) search engine operators are making their own expressions. Prior to the Decision, there were several decisions made by the lower courts which stated that search engine operators did not make any expression, primarily because the whole process of collection, organization and supply of online information is done automatically by certain computer programs. This opinion led to the holding by those courts that the operators shall not be responsible for the removal of search results. To the contrary, the Supreme Court held in the Decision that the service provided by online search operators has an aspect of “expression by search engine operators themselves”, reasoning that a computer program used by an online search operator is prepared so that the search results are created in accordance with its own policy. The court goes on to state that, if a search engine operator is forced to remove a specific search results, then it should be regarded as “constraint of expression which is consistent in accordance with its policy” regarding provision of search results. In this way, the Supreme Court not only denied the opinion of the several lower courts, but also proposed its understanding of “expressions” made by online search operators differently from traditional mass media, which conducts news gathering and editing.

Another notable point in the reasoning is that the court gives great weight to the function of search engines. Although the court did not make clear reference to the “right to be informed” by the citizens, it stated that the service provided by search engine operators played an important role as infrastructure in online information flow, by supporting the public to pick up necessary tips from massive amount of information on the Internet. This consideration presumably had substantial impact in the ruling (as mentioned in the next paragraph).

Next, the Supreme Court ruled based on the general legal framework governing privacy rights. As to civil claims related to violation of privacy by print press (such as claim for damages or injunction against publication containing one’s privacy), Japanese courts have established the rule that the claim is upheld only if privacy protection concerns outweigh the public interest in information disclosure. The Decision, essentially based on this traditional legal framework, set a higher hurdle of “…concerns clearly outweigh the public interest…”, adding the word “clearly” to the normal standard. The court applied this standard, which is more advantageous to search engine operators than the normal test, since the court put great emphasis on the important function of search engines, as well as on the importance of freedom of expression (as mentioned in the preceding paragraphs).

Finally, unlike Google Spain, the Supreme Court of Japan did not make any reference to the “right to be forgotten”. Instead, the court regarded the interest of the plaintiff as the “interest not to be disclosed of facts which is within the scope of one’s privacy”, without making any reference to the “right to be forgotten”. However, the Decision still seems similar to Google Spain in understanding that the right to privacy (or “right to be forgotten”) is not absolute and should always be balanced against the fundamental rights or interests, which requires careful case-by-case analysis. In other words, whether the court upholds the claim highly depends on the facts of each case, both in the EU and Japan.


As mentioned above, the Decision not only established the legal framework to be applied in the same type of dispute, but also presented the understanding by the Supreme Court of search engines in relation to the freedom of speech and the relevant issues. How to apply the above-mentioned standard to each particular case is, however, still open to a considerable extent and remains to be discussed by the courts in the near future.

I am left uncertain whether the holding is as broad as your headline claims. From your account of the decision, it seems that it might be either (a) a general holding that search results cannot be censored by private parties asserting personal privacy preferences that certain truthful information not be shared; or (b) a balancing of individual interests against the value of public dissemination of truthful information on a "case by case basis" in which a thumb has been placed on the scales in favor of search engines, and a finding that the public interest in knowing that someone has engaged in prostituting children is greater than the pimp's interest in his own privacy. If (a), then this is a big deal. If (b), perhaps not, because if this is a balancing test the subject case is rather extreme, and we have learned little about how the balance will be struck in less stark cases.

In any event, the account leaves me with a question: is there a basis in Japanese constitutional law for a court order on behalf of private parties requiring the suppression of truthful information, or not?

Why use footnotes instead of links? You are writing on and for the Web, after all....

(*1) ECJ, Case C-131/12, Google Spain v. AEPD (2014).

(*2) Andrew Neville, Is It a Human Right To Be Forgotten? Conceptualizing The World View, 15 Santa Clara J. Int'l L. 157 (2017), at 167.

(*3) Supreme Court, Judgement, January 31, 2017, 1669 Sai-Ji 1.


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r2 - 11 May 2018 - 16:14:19 - EbenMoglen
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