The right to be forgotten tested at Japan’s Supreme Court

On January 31, 2017, Japan’s Supreme Court rejected an appeal to reverse the dismissal of the case filed by a man, once fined for child prostitution, who was seeking injunctive relief to delete search results referring to his arrest. It was the first case ever brought before the highestcourt in Japan that addressed a claim based on the right to be forgotten.

The appellant was arrested in November 2011 and fined in December the same year on a charge of child prostitution. His arrest was widely reported and posted on many websites. He sought a preliminary injunction against Google, demanding that the search engine removelinks to websites that mentioned his 2011 arrests, on the grounds that those search results were violating his right to be forgotten.

Google alleged that search results are not a form of expression because they are mechanically generated. Each search is a conduit for content created by an external user. The court rejected this argument, reasoning that search engine providers design algorithmsto ensure that search results are consistent with their own policies and goals.

However, the court recognized the significant role that search engines play in providing an infrastructure for organizing information on the Internet. For this reason, the court held that requests to delete search results should be granted, following a balancing test, only in cases where the need to protect an individual’s privacy obviously outweighed the interests of the search providers. The balancing test would take into account various factors, including the nature of the facts disclosed, the breadth and degree of the alleged privacy invasion, the social status and influence of the individual in question, the purpose and importance of the online content, and the circumstances and time elapsed since the content was posted.

In conclusion, the court rejected the appellant's request to delete search results that mentioned his arrest, as the nature of the incident still generated strong public interest. In addition, relevant search results only appeared when his name and district were included in the query, ensuring that his exposure was relatively limited. The district court granted his motion for an injunction, which was then overturned by the appeal court. The highestcourt affirmed the appealcourt's judgment.

In deciding conflicts between the invasion of privacy and freedom of expression, the Supreme Court adopted a balancing test in 2003, when a weekly magazine disclosed the real names and other private information of serial killers who were then minors, an act that was prohibited because it violated the privacy of juveniles. Using a similar approach in this Google case, the court revealed that the balancing test approach could also be applied to online invasions of privacy.

It is not surprising that the court failed to mention the “right to be forgotten” in its opinion. Japan’s Supreme Court has been careful to acknowledge new types of human rights that are not explicitly listed in the constitution. Invasive search results and website content have been treated in the lower courts as invasions of privacy, without introducing the concept of a right to be forgotten. This new decision seems to imply that disputes of this kind can be resolved (in contrast to the approach taken by some other jurisdictions) without discussing the right to be forgotten, or whether it should be recognized in Japan.

According to this judgment, search engine providers are no different from other content platform providers, such as Facebook and Amazon, in that they have a duty to manage contentthat appears on websites. This judgment appears to clarify that titlesand snippets of search results can be grounds for invasion of privacy claims, separate from their original content.

More importantly, the Supreme Court emphasized the significance of search engines. It makes sense that eliminating search results because individuals object to them could undermine the neutrality of those results. This ruling will have a significant impact on numerous cases pending and forthcoming in the lower courts, which will no longer rule easily against search engines in such cases. Google must be relieved, but we will sometimes have to live with unpleasant search results. Keep your heads down, and watch out for enemies posting nasty comments.

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