JAPAN: Supreme Court rules on “right to be forgotten”

Despite signs in recent years that a so-called “right to be forgotten” had been introduced in Japan, the Supreme Court of Japan has recently refused to enforce such a right against a search engine in Japan, thus questioning just how far this right exists and extends in Japan.

In a landmark case in October 2014, a court in Tokyo ordered Google Japan to remove a number of search results that alluded to the complainant’s connections with criminal activity, in a case with some similarities to the Google Spain case in Europe. While this case did not constitute a formal legal precedent under Japanese law, its practical effect was to recognise that a “right to be forgotten” can be enforced in Japanese law. Further cases have followed, including in December 2015 where a Saitama court cited – reportedly for the first time – a “right to be forgotten” (rather than a right to privacy) when ordering Google to de-list links to three-year old news reports regarding an individual’s criminal conviction; however, this decision was reversed on appeal in July 2016.

Now in the latest development, on January 31, 2017 the Supreme Court of Japan dismissed the appeal brought by a Japanese man against Google Japan (the Saitama case mentioned above), who was seeking the removal of online search results which referenced his arrest for child prostitution more than 5 years ago.  In its decision, the Supreme Court of Japan did not directly address the “right to be forgotten” but rather decided to base its resolution of the case on the traditional legal frameworks governing privacy rights. The Court reasoned that “removal of information can be demanded only when privacy protection concerns clearly outweigh the public’s interest in the disclosure of information online,” and went on to balance these competing interests through careful consideration of factors including the public’s interest in disclosure of this type of information on the one hand, and the potential harm brought upon the individual on the other.

This relatively favourable decision for operators of online search engines may perhaps inhibit future claims based on the right to be forgotten and allow these operators to avoid the cost increases that would be necessary to provide additional mechanisms to monitor and remove infringing items from search results. However, as the legal arguments concerning the right to be forgotten were not explicitly addressed by the Supreme Court of Japan in this case, it is possible that the issue could eventually be re-litigated should societal perceptions change.