2-CHANNEL WEBSITE LAWSUIT UPDATE Sept 14 2006

mytest

====== 2-CHANNEL WEBSITE LAWSUIT UPDATE ===========
DEFENDANT STILL REFUSES TO PAY COURT-ORDERED DAMAGES
FOR INTERNET LIBEL.
LIBELOUS STATEMENTS REMAIN ONLINE TO THIS DAY
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By Plaintiff Arudou Debito
September 14, 2006 Freely Forwardable

Table of contents:
==============================================
1) QUICK RECAP OF THE CASE
2) WHAT IS 2-CHANNEL? REFERENTIAL LINKS
3) THE ISSUE
4) THE UPDATE
5) WHY THIS DESERVES MEDIA ATTENTION
6) APOLOGIA: What of issues of free speech?
7) CONTACTS
==============================================

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1) QUICK RECAP OF THE CASE: From early 2004 onwards, anonymous poster(s) began systematically copying and pasting statements on a Japanese Internet Bulletin Board System (BBS) called “2-Channel”, Japan’s most popular website, with around one million posts and 20 million hits per day. Said statements were about Plaintiff Arudou Debito, a human rights activist in Japan. Calling him inter alia a “White Supremacist”, the posts, which were added to just about any BBS thread regarding foreigners in Japan, attributed to him by name several fabricated statements, such as “he said he supports massacres of Iraqis”, “he said he supports discrimination against non-Whites”, with the clear aim of impugning his character and damaging his credibility in his campaign for racial equality in Japan.

Repeated requests both by electronic and registered mail were made by Plaintiff and his lawyers to remove these materials from the online archive, but were completely ignored by the founder and administrator of 2-Channel, a Mr Nishimura Hiroyuki. The posts in question to this day have been left up to spread further across the Internet. After Plaintiff sued for defamation of character, Defendant ignored all court communiques, and never appeared in before the judge to offer any explanation or defense. On January 20, 2006, Hokkaido’s Iwamizawa District Court ruled in favor of Plaintiff, awarding him 1,100,000 yen in damages for negligence in the face of libel, and ordered 2-Channel to remove all the libelous posts. However, Nishimura continued to ignore court orders, forcing Plaintiff’s legal team to take further litigious steps to enforce the court decision. Update below.
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REFERENTIAL WEBSITES:
What is 2-Channel?
1) “Japanese get real on 2 Channel” Japan Times, February 13, 2003
http://search.japantimes.co.jp/member/member.html?nc20030213mr.htm
2) Q&A with Defendant Nishimura on USC Japan Media Review, August 22, 2003
http://www.ojr.org/japan/internet/1061505583.php
3) “Log on to the Dark Side” Time Asia, June 18, 2001
http://www.time.com/time/asia/digital/magazine/0,9754,131020,00.html
4) “Net boards venue for faceless rightists” Japan Times, March 14, 2006
http://search.japantimes.co.jp/member/member.html?appURL=nn20060314f1.html

The libelous claims made about Plaintiff Arudou, and the court’s opinion about them.
http://www.debito.org/2channelsojou.html#english
Newspaper articles on the court decision in English and Japanese
http://www.debito.org/2channelsojou.html#kiji

The damage done: Do a Google search on”Arudouinkuru”, “Iraku” (both in katakana) and “2ch” (to eliminate most genuine news sites), and you will see that as of today there are more than 1000 sites with the abovementioned libelous posts. This is around double the number of sites with the posts when the decision came down in January, which means that 2-Channel has taken no steps whatsoever to follow the court order.

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THE ISSUE: Does a media outlet, owned and run by an individual (as opposed to a corporate entity with a tax home and registered assets), have to take responsibility when anonymous users make false, damaging, and irresponsible public claims about people? The Iwamizawa District Court ruled yes. But what if the Defendant, even after losing, refuses to follow the court decision to either a) pay the damages, or b) remove the libel? This is where the case diverges from issues of “freedom of speech”, and into questions regarding the ability of Japan’s judiciary to enforce its own court decisions.

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UPDATE: Eight months after the verdict, I can now release information about what further measures we have taken. These steps, although they have brought us no closer to getting damages from Nishimura, illustrate what legal loopholes a new media can exploit to evade responsibility, and expose the need for legislation to deal with the problem.

TIMELINE:
Jan 20, 2006: Iwamizawa District Court decision for Plaintiff Arudou.
Feb 3: Deadline passes for Defendant Nishimura to appeal; no response.
Mar 29: We file motion (saiken sashi osae moushi tate) with Tokyo District Court to seize Nishimura’s assets at his company, Tokyo Plus KK.
Apr 5: We file motion (kansetsu kyousei moushi tate) with Iwamizawa District Court to force Nishimura’s to follow the court decision, with a compounding financial penalty for every day the decision is not carried out.
Apr 7: Tokyo District Court grants motion of Mar 29.
Apr 11: Registered communiques from Tokyo District Court to Tokyo Plus KK returned unopened because nobody went to the post office to claim them. We refile motion.
Apr 28: Registered communiques from Tokyo District Court again returned unopened. (We drop motion against Tokyo Plus KK on Jul 14 to contact a different company.) Also, Apr 5 motion from Iwamizawa District Court returned unopened.
Jun 30: We file separate motion with Tokyo District Court to seize Nishimura’s assets at another one of his companies connected with 2-Channel, KK Niwango.
Jul 20: Tokyo District Court grants motion of Jun 30.
Jul 27: KK Niwango answers motion in official court statement: denies paying Nishimura any salary, therefore has no assets to seize.

(All documents will be available presently in Japanese at
http://www.debito.org/2channelsojou.html#updatesept06 )

And that’s it. Which means all Nishimura and his corporate allies have to do is ignore orders from the court (by not officially receiving them, therefore not being “served with papers”), or else deny that there is any financial connection between them, and Nishimura can avoid taking any responsibility. No police will arrest Nishimura (because this is a Civil Court case, not a violation of the Criminal Code). Also, there is no judicial oversight commission in Japan which can audit or raid the companies, or ferret out Nishimura’s bank accounts. (In fact it becomes Plaintiff’s responsibility, at his own expense, to hire a private detective–for around 500,000 yen, with no guarantee of success).

This is the route taken by Nishimura so far in the thousands of (many successful) lawsuits raised against him. If you want to sue 2-Channel, you have to sue its representative, as the company is registered to him individually. But you cannot find his assets, because they are not properly registered (like they would be for any other established non-cyberspace media outlet). He technically has no income, and only he knows his bank accounts (which may be under different names or untraceable titles). Meanwhile, Nishimura can continue to meet media, write books, make public speeches, and get away with running a venue that causes social damage judged illegal by a court. All because Japan’s court system is unempowered with the investigative mechanisms to enforce its own court rulings, or equipped with cyberspace-specific legislation to keep the media clean.

Point is: Nishimura had his day in court. He lost. Now pay up.

Now that we have exhausted all judicial means (we can only file more papers against more companies, and they answer at their whim, again with no judicial sanction), our next step is for me to bring the problem to the fore, and hope we get some media attention.

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WHY THIS DESERVES MEDIA ATTENTION

Because this is not the only place in which Japan’s judiciary has loopholes. Civil Court decisions are often unenforced, and short of filing angry letters, the judiciary won’t get the police involved. Other cases, such as issues of child custody and support (two I know something about), are also without legal sanctions of enforcement.

However, with media attention, legislative remedies can occur. For example, in the bad old days, there was no way, say, to force a deadbeat spouse to pay child support if he kept his bank accounts secret; after some awareness raising by journalists, now there is a law which says you can force the spouse’s employer to pay alimony directly from his salary. This is what press coverage does for social problems, and I believe my case uncovers one. I will also be sending this issue to the domestic press in due course.

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APOLOGIA:
Many readers in the media are probably wondering if my court decision constitutes some sort of threat to free speech. This I strongly doubt because for two reasons. One: Remember that this passed through a court of law. I’m sure any Japanese judge can distinguish between information based upon fact and unsubstantiated rumor motivated by malice–especially given the general cautiousness of Japanese judges. Two: Consider the nature of the media in this case–the Internet. All other media formats–print or broadcast–have editors, registered corporations, credibility-checkable sources, and people who are in charge and can take responsibility if somebody goes too far. However, with the Internet, and in particular places like anonymous Bulletin Boards, there is nobody who will take responsibility, either on the moderator’s side or on the poster’s side. Thus, with complete poster anonymity, coupled with a media which will not delete libel, irresponsible messages of some
permanence will inevitably get through and stick; there is simply no mechanism to clean things up.

What makes 2-Channel peerless in this respect is that, according to my lawyers, it has been sued repeatedly, and lost in court due to negligence. Yet 2-Channel can ignore those court decisions, refusing to pay severances, reveal IP addresses, and lets the libel stick. How? Because, again, unlike other media, 2-Channel’s assets are privately owned, secretly stashed, and thus unfreezeable should they lose in court and refuse to pay. Which means Japan’s “Provider Responsibility Guidelines Law”, mentioned in the court decision, is unenforceable.

In sum, winning against 2-Channel will not affect other, more responsible media, because other media has mechanisms in place to ensure it never goes as far.

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CONTACTS
My lawyer, SHIBA-IKE Toshiteru can be contacted at shibaike@hg-law.jp
(He speaks, reads, and writes English)
Phone number Sapporo (011) 231-1888, Fax (011) 231-1785
My email, as always: debito@debito.org

Thanks for reading. Arudou Debito in Sapporo, Japan
debito@debito.org
http://www.debito.org
September 14, 2006
ENDS

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