Sorry to keep you waiting. This issue got a lot of press, and just keeping up with the Japanese-language side of things has kept me busy...
FULL REPORT ON THE 2-CHANNEL LIBEL LAWSUIT VICTORY
By Arudou Debito, January 22, 2006
////////////////////////////////////////////////////
1) QUICK RECAP OF THE CASE
2) THE COURT DECISION
3) THE REASONING
4) MY FEELINGS ABOUT WHAT THIS CASE MEANS
////////////////////////////////////////////////////
This case has been fully archived (with documents submitted to court
and court decision in Japanese, my reports and kansoubun in Japanese,
and related newspaper articles) at
http://www.debito.org/2channelsojou.html
////////////////////////////////////////////////////
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", accessed by hundreds of thousands of people
daily, about Plaintiff Arudou Debito, a human rights activist.
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
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 also 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.
////////////////////////////////////////////////////
2) THE COURT DECISION
Judge Senga Tetsuro ruled largely as follows:
a) Defendant Nishimura
Hiroyuki of 2-Channel must pay 1,000,000 yen in damages, and 100,000
yen in lawyer fees to Plaintiff Arudou Debito.
b) Defendant must delete all contentious posts from 2-Channel's server.
c) Defendant must release the IP address of contentious poster(s).
d) Only item (a) above may be contested in appeal. [Defendant has two weeks to appeal.]
////////////////////////////////////////////////////
3) THE REASONING
(bullet points condensed and paraphrased from the ruling, starting from page 6 of decision text)
http://www.debito.org/2channelsojou.html#hanketsu
a) The contentious posts
involved Plaintiff by name, and had the undeniable danger of damaging
his social reputation.
b) The statements within the contentious posts were of no benefit to society.
c) The statements had no grounding in fact.
d) The posts should have
been deleted from the BBS, but the Administrator, who has the
obligation to take measures, did not. In addition, Administrator
did not respond to requests by Plaintiff to delete the information.
e) Because the
information was not deleted, and it claims he is a racist, one cannot
ignore that it has ill-effects on Plaintiff's livelihood and activism
in society.
f) As per the "Provider
Responsibility Guidelines Law" (purobaidaa sekinin kisei hou), Article
2 Clause 1 (Electronic Mail Privacy), Defendant must reveal the IP
address of the person who posted said posts to the BBS.
g) In sum, it is clear
that Plaintiff had his honor illegally infringed upon by information
which affected society's view of him, information which was not dealt
with in a proper manner by the BBS and which remains on display to this
day.
////////////////////////////////////////////////////
4) MY FEELINGS ABOUT WHAT THIS CASE MEANS
Well, we won, and of course I'm very happy about that. We also
won big--just about everything we asked for was granted by the
judge (the court damages were more than the
Otaru Onsens Lawsuit award
of 1 million yen). More importantly, in terms of legal precedent,
even a person who cannot claim a concrete amount of monetary damage due
to defamation (I'm not a business with a clearly-affected balance
sheet, unlike previous victorious plaintiffs against 2-Channel) can
claim damage to honor. It is, arguably, a blow for human rights
(as opposed to economic rights, i.e. of a business to survive
profitably and free from defamation--which the Japanese judiciary
generally sees as more worthy of protection).
There are of course some extenuating circumstances behind this
victory. The egregious nature of 2-Channel's behavior in this
case (not answering anybody, including the court, even once) made it so
that no possible defense could have been included in the decision (the
judge makes clear on page five that 2-Channel simply had nothing to
say). This undeniably made the case a cakewalk. And the egregious nature of
the posts involved (just about every reader of Japanese I have shown
them to shudders at their nastiness) makes it clear that the freedom of
speech on the Internet does not, as we argued, give freedom to
deliberately and maliciously defame somebody with complete
untruths. This is an extreme case, and it got by Japanese
standards an extreme decision.
But 2-Channel has long since established itself as an extreme place, or
as I put it in
my Japanese statement on this case, "a hotbed for the
abuse of the freedom of speech"
(genron no jiyuu no ran'you no
onshou). Although local versions of 2-Channel (such as the
Hokkaido BBS) allow no private names to remain on its
databases, the national version of this site, my sources and experience
dictate, is full of rumor, exaggeration, speculation, and outright lies
about specified individuals--which remain undeleted, as my case
shows. And it's not just me: fellow human rights activists and
lawyers, for example, who have long suffered incessant impugning of
their character on 2-Channel, wrote me letters of congratulations for actually
taking them on in the first place, moreover successfully.
It's about time, they said.
Many people in the media reading this are probably
wondering if my court decision constitutes some sort of threat to free
speech. This I strongly doubt, a) because I'm sure any Japanese
judge can distinguish between information based upon fact and
unsubstantiated rumor motivated by malice, and b) because of the nature
of the media in this case. That is to say, 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, in the case of the Internet, and particularly places like
BBSes, there is nobody who will take responsibility, either on the
moderator's side or on the poster's side. Thus, because there is
no editor and anyone can post anything they like (and anonymously at
that), irresponsible messages of some permanence will inevitably get
through and stick; there is simply no mechanism to clean up this
media.
What makes 2-Channel peerless in this respect is that, according to my
lawyers, it has been sued repeatedly, and lost due to negligence in
editorial policy: administrators similarly had taken no action to
remove
defamatory posts. Yet 2-Channel ignores those court decisions,
refusing
to pay severances or reveal IP addresses, and continues on as
before. How? Because unlike other media, 2-Channel's assets
are privately
owned, secretly stashed, and thus unfreezable should they lose in court
and refuse to pay. Which means the "Provider Responsibility
Guidelines Law", mentioned in the court decision, is
unenforceable unless somebody digs up Nishimura's bank accounts.
This is how 2-Channel gets away with abetting libel--by simply ignoring
the law or the courts. In sum, winning against 2-Channel will not
affect other, more responsible media, because there are mechanisms in
place there to ensure it never goes as far as it did in this case.
What happens next? There has been a lot of press (
an article in every newspaper yesterday morning,
a quick discussion on the issues on NHK Friday night) on this. For
once this prominence of this case may bring public pressure to bear on
either 2-Channel to cooperate, or else pressure on lawmakers to stop
places like 2-Channel flaunting the law. But I am unconfident
that 2-Channel will cooperate with the courts and pay up, because if it
did, with the backlog of lost lawsuits, it will probably go
bankrupt. I am also unconfident that 2-Channel will obey the court
order even as far as releasing the IP addresses, even if it costs them
nothing. There's just no sanction for refusal. Then
what? We take steps to find their accounts and freeze them, we
take out an injunction (details on this process unclear to me at this time)
with heavy fines (something like 10,000 yen for every day 2-Channel
does not cooperate). But it is clear that 2-Channel is
making use of a legal grey zone to stay up and flaunt, and anonymous
posters are taking advantage of that to smear more people for sport or
malice.
How to resolve this situation? One simple thing I'm sure 2-Channel has
thought of is displaying all IP addresses whenever anyone posts.
That would pass the buck to the poster. But mysteriously
2-Channel hasn't done so (and it's too late for past court losses anyway). Japan could also, as it has done for
all media with licences and other measures for public accountability
and quality control, change regulations to require BBS administrators
and providers to publicly register their assets. I prefer a much
more sweeping reform--the establishment of a criminal law specifically
against hate speech, which Japan still lacks in violation of
international treaty. Unless there is the specific threat of
arrest, some people just won't see sense.
In any case, this court decision should cause no major policy paroxysms. The
mass media has been around for a while, and systems have long since
evolved to ensure quality control and prevent the innocent from getting
hurt. With this new communication system, where anyone with an
Internet connection can by bypass the editorial process instantaneously
on widespread archived media, it's high time to take steps guaranteeing
some form of responsibility in information dispersal. Yes, a law
was passed on it in 2002, but clearly it has some holes it which need
plugging. Hopefully this case will help highlight where some of
them are.
Arudou Debito
Sapporo
January 22, 2006
debito@debito.org
http://www.debito.org
(More on the ethos and the management behind 2-Channel at USC's Japan Media Review site, article dated August 22, 2003.)
ENDS
UPDATE SEPT 2006
DEFENDANT NISHIMURA FROM 2-CHANNEL DODGES THE AUTHORITIES,
REFUSES TO PAY DAMAGES OR TAKE DOWN THE LIBEL
====== 2-CHANNEL WEBSITE LAWSUIT UPDATE ===========
DEFENDANT STILL REFUSES TO PAY COURT-ORDERED DAMAGES
FOR INTERNET LIBEL.
LIBELOUS STATEMENTS REMAIN ONLINE TO THIS DAY
==============================================
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
==============================================
///////////////////////////////////////////////////////
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.
///////////////////////////////////////////////////////
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.
///////////////////////////////////////////////////////
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.
///////////////////////////////////////////////////////
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 available 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), and there is apparently no enforcement of contempt of
court. 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.
///////////////////////////////////////////////////////
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.
///////////////////////////////////////////////////////
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 or reveal IP addresses, and letting 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.
///////////////////////////////////////////////////////
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
UPDATE ENDS
I updated you last week (
http://www.debito.org/index.php/?p=30
) about my lawsuit against Japan's largest Internet BBS,
2-Channel. Although they lost a libel suit to me last January,
Owner and Adminstrator Defendant Nishimura Hiroyuki still hasn't paid
the court-ordered damages, and has ignored another series of paperwork
we have filed to enforce the decision. Full details on the
lawsuit at
http://www.debito.org/2channelsojou.html#english
The news is that I just heard that Nishimura, with his invisible
income, numerous personal blogs and online columns, and books published
by the likes of Kodansha and Asukii, has made himself invisible.
Witness this newspaper article (translation mine):
============== BEGINS ==================
On September 22,
it was established that Nishimura Hiroyuki (29), aka "hiroyuki",
administrator and operator of giant Internet BBS "2-Channel", has
disappeared (shissou joutai). This BBS is being run by Nishimura
as an individual. Even after government organs have demanded that
inappropriate posts be removed, and posters have their whereabouts
revealed, [Nishimura] has let these things slide and not responded to
orders to appear before courts. The worst case scenario is that
"2-Channel", an emblematic site to Internet industries, may even be
shut down.
=============== ENDS ===================
I don't know where this article appeared (it looks like a screen
capture from a TV news show), but it is genuine. See for yourself:
I have also heard rumors that Nishimura was about to declare personal
bankruptcy, and has a gaggle of lawsuits following him to zap any
above-board income (royalties etc.) he might legally receive.
However, he'll never be able to open and register a real company, and
if he does reappear and declare himself bankrupt, he'll apparently even
lose the right to vote.
For the record, I do not support closing 2-Channel down (it is for most
a very valuable network). I only want it to take responsibility
for filling the media with irresponsible information, so bad that even
Japan's cautious courts have determined in several cases to be
libelous. Continuous evasion of these responsibilities as a
member of the media may mean Nishimura gets his in the end. Keep
a weather eye on this story... ENDS
以上
