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Court decision may fire up ‘right to be forgotten’ debate

Kyodo

The Supreme Court has issued its very first decision citing conditions for allowing for the deletion of information from internet search results, although its ruling made no mention of the “right to be forgotten,” a concept increasingly gaining ground in Europe.

The Jan. 31 decision laid down several points that need to be considered in balancing privacy protection with information disclosure on the internet.

It created some hurdles for deletion and rejected the case that led to the ruling. The case was filed by a man who wanted Google Inc. to remove search results that mentioned information about his November 2011 arrest for child prostitution.

Some lawyers believe the ruling may prompt judges to prioritize the protection of privacy and order deletions of information on defamation and libel cases if the public interest in them is limited.

The unanimous decision by the top court’s five-justice Third Petty Bench followed a ruling by the Saitama District Court in December 2015 that drew public attention for allowing the expunging of search results about the man’s criminal record, citing “the right to be forgotten.”

The Tokyo High Court overturned the decision, saying it is not a right stipulated in law and should not be established as a new right because its grounds and consequences are not clearly established.

The Supreme Court, in contrast, did not make any references to the right to be forgotten and its decision appears to favor search engines because it only limited deletions to cases where priority should be placed on privacy protection over disclosure.

Although the case was rejected, lawyer Tomohiro Kanda, who represented the man in the case, said Wednesday that the issue is far from resolved.

“I don’t think it’s a severe judgment. It’s regrettable for my client but it’s an apt frame of reference for (future) judgments,” he said.

Kanda was not overly concerned about the lack of reference to the right to be forgotten in the ruling, saying, “It wasn’t touched probably because public discussions have just started in Japan.”

The top court provided some pointers in judging the legality of a search engine’s results showing a website or an internet link, carrying news reports or other forms of information containing facts about a person’s privacy.

They include the scope of potential damage privacy disclosure could cause to the person and whether it is necessary to include facts such as the person’s name and address in the report. It also noted the status and influence the person has in society should also be considered.

The court acknowledged that the man’s arrest for child prostitution in the latest case is “a fact belonging to the appellant’s privacy that he may not want to be made known to others without good reason.”

But it determined that it is “a matter that still concerns the public interest to date” because his crime is “regarded as a form of sexual exploitation against children subject to strong social condemnation and prohibited with penalties.”

Saying it does not see any clear legal interests in keeping the man’s record undisclosed, the top court let stand the high court’s decision that had rejected the man’s appeal.

Kanda took note of the court’s yardsticks for making a decision on deletion. “I would think it will remain difficult (to have) crime reports (erased) but it could become easier to delete a defamation article if it is found to contain a lie,” he said.

Lawyer Kazuhiki Azusa, who closely follows freedom of expression cases, said “privacy should have been prioritized considering that the man did not stand in an open court and that he has paid the penalty of a ¥500,000 fine for a summary conviction.”

“It’s very painful for that person to see his criminal record remain disclosed on the internet,” Azusa said. The court “should have taken note that there would be interest in reinstating (the man) in society to lead a family life.”

While there had been no precedent on whether one can ask for the deletion of personal information on the internet in Japan, the right to be forgotten is taking root in Europe as a common rule.

The Court of Justice of the European Union, for instance, ordered Google to delete personal data about a Spanish man in its search results showing information concerning an auction notice of his repossessed home, saying individuals have the right to ask search engines to remove links with personal information under certain conditions.

In Japan, more people will likely take legal action to seek remedies for privacy violations on the internet.

The “illegal harmful hotline” center supported by the Ministry of Internal Affairs and Communications said it handled 5,200 inquiries about potentially illegal information on the Internet, including requests for deletion of information, in the year through March last year. This was nearly four times greater than 2010 when it started consultations.

Misa Takahashi, a lawyer versed in issues related to information deletions on the internet, noted the latest ruling’s argument that providing search results is an act of expression by a search engine. “It’s a step forward in holding (search sites) accountable” for what comes along with that action, she said.

She also agreed that there will be a trend recognizing deletions in cases where privacy is exposed as a result of false information.