Case Summary and Outcome

The Japanese Supreme Court ordered Twitter to remove tweets which referred to an individual’s 7-year old arrest. The media had reported on the arrest of an individual for trespass, and anonymous Twitter users had referred to those news articles in their tweets. Seven years later, when the individual had been rejected for a job based on the existence of the online information, the individual approached the courts seeking the deletion of the tweets. The Court of First Instance ordered Twitter to remove the tweets, but on appeal the High Court rejected the request, highlighting the public interest of the information. The Supreme Court emphasized the time that had passed since the news broke and that the individual was not a public figure, and found that, in this case, the individual’s privacy outweighed the public interest in accessing the information.

Facts

In 2012, a Japanese individual, plaintiff X, was arrested and charged for trespassing into a changing room of a women’s bathhouse in an inn. X, an employee of a company at the time, was not a public figure. Following the arrest, news reporters published articles about it on their websites. On the same day, anonymous Twitter users referenced these articles in tweets. Although most tweets included links to the articles, the content was no longer available as the articles had been deleted by the time the trial concluded in the high court.

Several years later, following the arrest, X got married without disclosing this fact to their spouse. X had sustained a livelihood by assisting in their father’s business but later, when applying for a job, he was denied employment when the company found the arrest record through an online search using X’s name.

X brought a case to Tokyo District Court, seeking the deletion of tweets containing information about the arrest, on the grounds that they infringed his right to keep information that belongs to his privacy from being disclosed.

In October 2019, the District Court ruled in X’s favor, ordering Twitter to remove the tweets that included the facts of his arrest. The Court conducted a simple balancing test, weighing X’s privacy rights against the public interest behind the tweets, and did not apply the rigorous standard set by the 2017 Supreme Court case, Plaintiff X v. Google, 2016 (Kyo) 45 that requires “clarity” in a plaintiff’s privacy interest over other considerations to order deletion. To distinguish this case from the 2017 precedent, the Court viewed Twitter as only one of many websites on the internet and found that, although Twitter was used by many people as a convenient way to impart and receive information, Twitter has not yet been “a foundation for the distribution of information on the Internet” like a search engine. Further acknowledging the challenges in requesting deletion from individual users due to a limited data storage period at the internet service providers, the Court adopted a straightforward evaluation of X’s privacy rights against the reasons for the tweet’s public availability. Applying that standard, the Court determined that while the tweets were of public interest at the time of the arrest, the significant passage of seven years and six months by the conclusion of oral argument had diminished this public interest. The Court then found that safeguarding X’s privacy interests—pursuing rehabilitation without disturbance and maintaining a peaceful life—outweighed the reasons for keeping the tweets accessible to the public.

Twitter appealed the case to the Tokyo High Court.

In June 2020, the High Court reversed the District Court’s ruling and rejected the request to delete the tweets. Differing from the District Court’s ruling, the High Court characterized Twitter as “a foundation for the distribution of information on the Internet,” likening its significance to that of a search service provider like Google, as established by the Supreme Court’s 2017 case, and applied the rigorous standard that requires “clarity” in a plaintiff’s privacy interest over other considerations to order deletion, drawing parallels to the 2017 Google case. To do that, the Court underscored Twitter’s immense popularity, and diverse user base encompassing public officials, ministries, and private companies, and highlighted the pivotal role of its search function in aiding users to navigate and locate pertinent information from a vast array of tweets. Applying that standard, the Court concluded that there wasn’t a clear priority of X’s privacy interest superseding other factors. This determination stemmed from the understanding that the tweets were initially shared to serve the public interest, and they no longer appeared as search results on search engine websites beyond Twitter, thereby reducing the tangible risk of compromising the plaintiff’s privacy.

X appealed to the Supreme Court.

Decision Overview

The Presiding judges, Kusano Koichi, Kanno Hiroyuki, Miura Mamoru, and Okamura Kazumi, delivered the judgment. Judge Kusano Koichi delivered a concurrent opinion.

The key issue was whether X could compel Twitter, Inc. to remove the tweets containing details of their arrest. This involved two specific inquiries: first, determining the rule that the Court should employ; and second, based on that standard, whether X’s request for deletion should be granted.

In respect of the first inquiry, the Court explained that whether X can request Twitter to delete the tweets should be decided “by comparing various circumstances relevant to [X’s] legal interest of ensuring that the [fact of the arrest] is not made public and those relevant to the reasons for continuing to make the [relevant tweets] available for viewing by the public,” and if, as a result of this balancing exercise, X’s privacy interests outweigh the other considerations, they can demand the deletion of the tweets.

The Court outlined six factors: “the nature and content of the information included in the [t]weets”; “the range of people to whom the [f]acts would be communicated by means of the [t]weets”; “the degree of concrete damage that [X] would sustain”; “ [X]’s position in society and influence”; “the purpose and significance of the [t]weets;” and “the social situation at the time the [t]weets were posted and the changes thereafter.”

In relation to the precedent established by the 2017 Supreme Court case, which concerned a de-indexing request directed at Google and mandated clarity in the plaintiff’s privacy interest to outweigh other factors for de-indexing a criminal record, the Court found that such “clarity” was not mandated in this instance. The Court based this finding on the nature of Twitter’s services and their real-world usage.

The Court found that the fact of the arrest belonged to “privacy which he does not want others to know without due reason.” The Court considered, in the interests of keeping the tweets public, that X’s arrest was “for a crime which was committed at a place used by a large number of unspecified persons and cannot be regarded as a minor crime,” and the facts of arrest were of public interest. Despite the initial public interest, the Court observed that as eight years had elapsed by the conclusion of the oral hearing at the High Court, the relevance of the arrest to the public interest had diminished. Further, the Court identified that the tweets were posted “in order to report breaking news on the [fact of the arrest], and it can hardly be considered that the Tweets were expected to be viewed for a long time.” On the other hand, although the tweets had not drawn “particular attention,” there was not a small chance that the details of the arrest had reached X’s acquaintances through searches [within Twitter] using their name. Notably, X did not have an “official position.”

In conclusion, the Court found that X’s privacy interests outweighed the other considerations and ordered the deletion of the tweets.

In his concurrent opinion, Judge Kusano elaborated on his deliberation on both sides of the interests of the balance, namely, (i) X’s privacy interests and (ii) the circumstances relevant to the reasons for maintaining the availability of the tweets for public viewing.

On X’s privacy interests, Judge Kusano reiterated X’s legal interest in restoring a peaceful life through the deletion of the tweets, citing the case of 1989 (O) 1649 (where an individual, whose prior conviction details were disclosed with their real name in a book, could claim damages for emotional distress if their privacy interest outweighed the reason for disclosing the facts). Judge Kusano criticized the High Court’s conclusion that the tweets no longer appeared as search results on search engine websites outside Twitter, thus minimizing the tangible risk to X’s privacy. He emphasized that despite the absence of these tweets on search websites beyond Twitter, X shouldn’t be denied the hardship of potential disruptions to their peaceful life due to persistent concerns about the tweets being discovered by family or acquaintances.

On the factors pertinent to justifying the continued accessibility of the mentioned tweets to the public, Judge Kusano highlighted that, barring instances where the offenders hold public positions such as politicians, there is scant substantive value in reporting the identities of the offenders in crime reporting using their real names. As such, regarding the part that discloses X’s real name in the present tweets, X’s privacy interests immediately outweighed the interest in keeping that information public.