Case Summary and Outcome

The Supreme Court of Japan recognized that, in certain circumstances, a person could require that a search engine operator de-index URLs and other information concerning him/her from search results.  The case concerned a man who had been fined in November 2011 on charges relating to paying for child prostitution. This information was reported on several websites at the time and, in 2014, the man requested that Google de-index information concerning his fine from search results. Google did not grant the request. Although a person had the right to have information de-indexed in certain circumstances, the Supreme Court of Japan held that the individual in this case could not oblige Google to do so because of the public interest in the availability of information pertaining to child prostitution, and the narrow dissemination of the information in question.

Facts

In November 2011, Plaintiff X was arrested on charges related to child prostitution. In December 2011, he was fined on the alleged charges. The fact that he was arrested and fined was reported by the media and posted on several unspecified websites. This meant that such reports could be found upon a Google search of PlaintiffX’s name and the region where he lived. Sometime in 2014, Plaintiff X requested that Google de-index URLs and other indexed information that was linked to news reports of his arrest. Google refused, and Plaintiff X filed a complaint before the courts in Japan.

On December 22, 2015, the First Saitama District Court agreed that an individual had the right, in certain circumstances, to de-index from search results information that was related to old convictions. The District Court clarified that this depended on the nature of the crime, and the length of time that had passed since the crime was committed. In reaching its decision, the District Court referred to the concept of the “right to be forgotten”. The presiding Judge Hisaki Kobayashi stated that “[c]riminals who were exposed to the public due to media reports of their arrest are entitled to the benefit of having their private life respected and their rehabilitation unhindered.” Thus, the District Court ordered Google to de-index the relevant articles.

Google appealed, and the Tokyo High Court overturned the first instance decision on the basis that the “right to be forgotten” was not a privilege, and that there was no clear basis for it in Japanese law.  The Tokyo High Court also added that child prostitution was a matter of serious concern, and that the public interest in the case had not been lost over time.

Plaintiff X appealed the decision to the Supreme Court of Japan.

Decision Overview

The Supreme Court of Japan (Court) found that, in certain circumstances, an individual could have information de-indexed from search results. This reasoning was based on the protection of privacy and dignity as enshrined in the Civil Code of Japan (Articles 2, 198, and 199). However, in the case of Plaintiff X, his legal interests in such de-indexing did not outweigh the interest in the information being available.

Relying on existing judicial precedent, the Court recognized that search engine providers were engaged in a form of expression or speech when they collected, organized and provided information in search results. This conclusion was unchanged by the fact that such a process occurred automatically. The Court noted that, considering the importance of search providers in distributing and collecting information online, obliging search engines to de-index information could have repercussions on their right to freedom of expression and their important societal role in collecting necessary information from a huge volume of online content.

However, the Court explained that the act of producing a search result containing certain information could be illegal. To assist in determining when de-indexing was necessary in a particular case, the Court outlined a set of factors to consider that included:

• the nature and content of the relevant information;
• the range in which the information in question was communicated;
• the extent of concrete damage suffered by a person by the provision of the relevant information;
• the social position and power of influence of the person concerned;
• the purpose and meaning of the articles containing the information;
• the social situation when the articles were first posted and subsequent changes; and
• whether it was necessary to include the information in the articles.

The Court held that if it is apparent following consideration of these factors that the legal interest in the relevant information not being published outweighs the legal interest in publishing the information, then it is reasonable to assume that a person may demand that the search engine provider de-index certain URLs and other information from the search results.

Having established that an individual could in certain cases seek to have information concerning him/her de-indexed, the Court turned to the analysis of the facts at hand. The Court clarified that Plaintiff X requested certain information to be de-indexed because he was tied to a crime of child prostitution and exploitation, a crime that received severe social condemnation. This meant that the articles were of significant public interest. The Court added that the relevant search results would only appear upon a search of Plaintiff X’s name and the region where he lived. This meant that the dissemination of the search results was limited to a degree. Therefore, the Court could not find that Plaintiff X’s privacy interest in suppressing articles about his conviction through de-indexation outweighed the interest in publication.