Japan Supreme Court Denies Right to Be Forgotten Bid

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By Toshio Aritake

In a first time addressing the right to be forgotten, Japan’s top court recently determined that the country’s legal system prioritizes the public’s right to know over privacy.

Denying a plaintiff’s bid to remove search results on Alphabet Inc.'s Google about his child pornography-related criminal record, the high court refused to hear his right to be forgotten plea that a lower court had recognized.

A Japanese business executive, who was indicted but later acquitted for money laundering told Bloomberg BNA Jan. 5 that the court decision meant that, excluding “obvious cases, search engines do not need to agree to deletion requests.” The executive is still in a related lawsuit and requested that his identity and surrounding information be kept in strict confidentiality.

Before the court decision and now, the situation remains essentially the same for persons criminally charged and indicted, the executive explained.

“I have asked the search engines to delete the results of my false criminal case,” he said, “but they demanded extremely cumbersome processes such as presenting to them court decisions to delete, and at the end of the day, they refused to delete most of the results.”

Japanese internet, broadcast media and scholars hailed the decision as a protection of the freedom of speech, while interpreting the court decision as giving time for Japan to debate whether to introduce the right to be forgotten rules. They said the top court decision articulated the social functions of search engines and their increasing benefits, such as enabling viewers and readers to obtain past information.

Six Factor Test

The court said search engine operators assist users for obtaining necessary information from massive volumes of information and therefore, they play pivotal roles in modern society’s internet-based information distribution.

If their acts of providing research results are to be determined illegal and they are forced to delete information, this amounts to “restrictions on their societal roles,” the court said.

The court listed six factors in determining which should be superseded—freedom of speech or privacy:

  • 1. nature and content of information resulting from search engine search;
  • 2. plaintiff’s damages;
  • 3. plaintiff’s social status and power;
  • 4. searched articles’ objective and meaning;
  • 5. societal conditions; and
  • 6. necessity of posting searched information.

The Supreme Court of Japan’s five justices led by chief justice Kiyoko Okabe delivered their unanimous decision Jan. 31.

To contact the reporter on this story: Toshio Aritake in Tokyo at correspondents@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com

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