A Right to be Forgotten Case before the Japanese Supreme Court

On 31 January, the Japanese Supreme Court, for the first time in its history, handed down a decision regarding a so-called “right to be forgotten” case. The right to be forgotten—whose development the EU helped shape—entails an individual having the right to ask that a search engine remove search results linking to a specific result about him- or herself. The Japanese Supreme Court decided in favor of the search engine giant, Google, without referring to this emerging yet still contested right to be separated from one’s past online. Noteworthy, nonetheless, is that the Japanese Supreme Court laid down certain criteria with which to mandate the removal of search results. (The decision in Japanese is available here.)

Google search results containing a man’s past criminal record

In 2011, the appellant of the case was arrested and found guilty for his involvement in child prostitution under Japan’s child pornography law. Already on the day he was arrested, the story garnered media coverage and appeared in various online message boards. After over three years, the appellant sought provisional disposition for the deletion of the search results which contained his arrest and conviction records. The appellant’s story is by no means unique. In Japan, district courts received 52 requests for provisional disposition concerning the removal of personal data in the year to September 2016 (as reported in the Japan Times’ article).

The right to be forgotten

On 25 June 2015, the Saitama District Court ordered the deletion of search results, laying weight on the need for the man’s rehabilitation (which removing links to his criminal actions would help) against the public interest in displaying search results. On 22 December 2015, the Saitama District Court dismissed Google’s action for the revocation of the deletion order by, significantly, giving recognition to the “right to be forgotten”, based on the right to privacy which is in turn part of personality rights (jinkaku-ken in Japanese). However, the District Court’s decision was reversed by the Tokyo High Court on 12 July 2016, which denied such a right and did not treat it as distinct from the right to privacy. Both the District and High courts weighed competing interests, yet the High Court placed greater weight on the role of internet search engines in the freedom of expression and the “right to know”. (A good summary of the lower courts’ decisions can be found in TKC Law Library’s article, although it is in Japanese.)

The Supreme Court decision on 31 January 2017

On appeal, the five Supreme Court judges unanimously upheld the decision in favor of information disclosure. The Supreme Court presented the general criteria to be considered in judging whether it would be unlawful for search engine companies to keep providing information (such as URLs) containing privacy-sensitive articles. According to the Court, this should be determined by “balancing” the legal interest for non-disclosure with the rationales for information provision via search engines.

Circumstances which may be considered include:

“the nature and details of the facts, the extent to which the facts belonging to the person’s privacy will be transmitted by the provision of information such as the URLs, the degree to which the person thereby suffers from concrete damages, the person’s social status and influence, the purposes and meanings of the said [website] articles, social situations at the time the articles were published, social changes afterwards, and the need for including the relevant facts in the articles”.

If the legal interest for non-disclosure clearly “outweighs” the reasons for providing information, search engine providers can be requested to remove the relevant URLs from research results.

In the appellant’s case, however, the Japanese Supreme Court did not find it necessary to oblige Google to remove information about him. According to the Court, child prostitution is a penalized act subject to strong social criticisms and thus the arrest of the appellant still remains in the public interest. The Court also found information transmission still limited in scope, as the search results depended on the appellant’s name and his prefecture.

The significant yet still context-dependent reasoning of the Japanese Supreme Court leaves a number of questions to future jurisprudential development. For instance: which crimes are of public interest, and which are not? What if the appellant was a celebrity? What if the case was brought 20 years after the appellant committed the crime?

The right to be forgotten in Europe

Within the EU’s data protection legal framework, the right to be forgotten was consolidated in a landmark 2014 Court of Justice of the European Union (CJEU) case: Google Spain v AEPD and Mario Costeja González., Google Spain concerned a Spanish national who wanted Google to remove search results that linked to a newspaper article about his debts over 20 years previously. The Court found that such a right to request delisting existed, stating that the EU Charter of Fundamental Rights Articles 7 (privacy) and 8 (data protection) override, as a general rule, the economic interests of a search engine operator and, unlike the Japanese case, “the interest of the general public in having access to that information” (§99). That said, if the individual concerned plays a significant role in public life, interfering in his or her rights to privacy and data protection would be justified by the general public’s greater interest in accessing information pertaining to that individual (§99). Based on an individual’s request, a search engine must delist a search result if it is found to be “inadequate, irrelevant or no longer relevant, or excessive” (§94). The General Data Protection Regulation (GDPR), which will apply from May 2018, now includes an explicitly articulated right to be forgotten/right to erasure (Art. 18).

Potential ramifications of the decision

In relation to European data protection law, the Japanese Supreme Court’s ruling is interesting because it might have implications for future EU-Japan data transfers. EU Member States may only transfer personal data to third States that provide an “adequate” level of protection, sometimes affirmed by the EU awarding that State an “adequacy decision” (Data Protection Directive, Art. 25). Japan has not yet received an adequacy decision. In January 2017, however, the EU Commission said it would prioritize discussions on specifically Japan receiving one. As recently established in the CJEU’s ruling in the 2015 Maximillian Schrems v Data Protection Commissioner case, adequacy means the third State’s privacy laws must be “essentially equivalent” to those in the EU. In view of recent CJEU jurisprudence and the GDPR formally enshrining a right to be forgotten, the Japanese Supreme Court’s particular articulation of a right to be forgotten could have ramifications for these data transfer negotiations. This is especially interesting if the recent ruling would lend itself to Japan not having data protection laws “essentially equivalent” to those in the EU.

Machiko Kanetake and Mistale Taylor

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Machiko Kanetake

About Machiko Kanetake

Machiko Kanetake is Associate Professor of Public International Law at Utrecht University. She is a member of the Management Board of the Utrecht Centre for Regulation and Enforcement in Europe. Previously, she has been appointed as a postdoctoral researcher at the University of Amsterdam and held visiting appointments at NYU School of Law, Harvard Law School, and King's College London. She is a senior editor of the Leiden Journal of International Law.