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‘Right to be forgotten’ on the Internet gains traction in Japan


Staff Writer

The Internet has made fact-checking easy and people routinely use it for this end, for example, to Google client names and personal backgrounds before their first business meeting, or to take a quick glance at a potential new hire’s reputation.

But such information may become harder to acquire and background searches may someday yield little information.

An increasing number of people are demanding that unflattering personal tidbits about them be deleted from online search results, especially in Europe, where moves to protect the “right to be forgotten” have gained momentum. At the same time, search engines are coming under greater pressure to act on such demands.

Following are questions and answers regarding the legal issues surrounding the right to be forgotten:

What is the “right to be forgotten” and how has the term come to be used?

The right to be forgotten — an individual’s right to be freed from perpetual online stigmatization as a result of some past action — is stipulated in a draft version of the European Union’s General Data Protection Regulation, which the European Commission is trying to introduce to unify regulations on data protection within the EU.

The term “right to be forgotten” became widely known worldwide following a May ruling by the European Court of Justice involving a Spanish man who demanded his past debt record be removed from the Internet.

The court said a Spanish newspaper that carried articles about the man can leave them on its website, but Google must remove links to them, citing his “right to be forgotten after a certain time.”

The court also said individuals have the right to demand that search engines, including Google, remove results that are deemed “inadequate, irrelevant or no longer relevant, or excessive.”

How has Google responded?

California-based Google Inc. set up a special Web form for people in Europe to file requests for removal of search results. As of Dec. 2, Google had received 178,609 requests covering 630,919 Internet addresses. It has deleted some 60 percent of all considered for removal to date but refuses to remove the rest.

Google’s action, however, means that only the links to the articles are deleted, not the websites themselves. Therefore, people can still access such sites if they know the URL.

Has the European decision influenced Japan?

Yes. In a possible first in Japan, the Tokyo District Court in October issued an injunction ordering Google to remove the titles and snippets to websites revealing the name of a man who claimed his privacy rights were violated due to articles hinting at past criminal activity.

Tomohiro Kanda, who represented the man, said the judges clearly had the European court’s ruling in mind when they ordered Google to take down the site titles and snippets. Google has since deleted search results deemed by the court as infringing on the man’s privacy, Kanda said.

But generally speaking, Japanese judges have yet to reach a consensus on how to balance the right to privacy and the freedom of expression and of information.

Last January, the Tokyo High Court reversed a lower court ruling that forbade Google from showing predictions in its search bar. In that case, a man sought an injunction, saying searches of his name would turn up words that suggest his involvement in a crime he did not commit.

Presiding Judge Kenta Suzuki turned down the request, saying the damage the man suffers from such searches “does not outweigh the damage that Google and other Internet users would suffer (from losing that function).” The man has appealed the case to the Supreme Court.

Then in September, the Kyoto District Court rejected a suit filed against Google’s Japan unit by a man in his 40s seeking to have his arrest record removed from its search results. The judges said the case lacked legal grounds and sided with Google Japan’s position that it is the U.S. parent company, not the Japanese unit, that is responsible for managing searches and therefore it is not obliged to supervise them.

In the absence of regulations, Yahoo Japan convened a panel of outside experts last month to discuss the issue. Yahoo Japan, which, according to a 2009 report by U.S.-based comScore, had a 51 percent share of all search inquiries in Japan, followed by Google’s 38 percent, aims to come up with its own criteria for removal of search results by the end of March.

How are privacy rights defined in Japan? Does excessive protection of those rights hurt people’s right to know and the free flow of information?

Privacy rights are not clearly written into Japanese law but have been established through court precedents as part of personal rights, said Kenta Yamada, a professor of media law and journalism at Senshu University. He said that the 2003 Personal Information Protection Law only stipulates what businesses should do in handling personal information and does not spell out individuals’ rights to privacy.

Yamada said he is worried the October injunction by the Tokyo District Court “will pose a huge danger to the freedom of expression,” as it could be abused by politicians or others to silence critics.

“Japan is unique in the world in that politicians are quick to sue the media for defamation,” he said. “It does not matter whether they win the cases or not. It is a form of threat, and can easily lead to self-censorship on the part of the media. The October injunction could fuel that trend.”

But Yamada also said that from a purely legal standpoint, Japan’s protection of free speech is among the strongest in the world. Article 21 of the Constitution places no conditions on the freedom of expression, declaring that “freedom of speech, press and all other forms of expression are guaranteed” and that “no censorship shall be maintained.”

Will Japan have more court cases brought by individuals?

Undoubtedly. Attorney Kanda said he has been bombarded with requests from people wanting him to represent them. Also, the Tokyo District Court has seen a sharp increase in petitions for injunctions against malicious Internet postings, with the number of such petitions handled by the court growing more than 20-fold in four years, from 33 in 2009 to 711 in 2013, according to a recent report by Kyodo News citing court sources.