The Price of a Tweet

Defamation and Social Media in Japan

Abstract

The rise of social media presents a unique challenge for long-standing legal doctrines regarding defamation and privacy. Japanese defamation law has traditionally protected two legal interests: a person's social standing (shakai meiyo) and their emotional state (meiyo kanjō). In the case of the former, courts have established a series of requirements and legal defences that apply mainly to analogue media such as books, newspapers, radio, or tv. However, in contrast to common law principles and some civil law jurisdictions, Japanese courts do not consider truth an absolute defence for defamation claims. Thus, courts will grant damages based primarily on whether the plaintiff's social standing was affected by the defendant's statements.
Furthermore, the standards used to determine whether a statement is defamatory are based on the idea of an ordinary viewer, reader, or listener, depending on the medium. Japanese courts changed the standard for social media under the name of an ordinary user (ippan etsuran-sha). However, current case law does not seem to consider that in social media services, the concept of an ordinary user is not easily defined.
Usually, delictual liability falls upon the individual or institution that made defamatory statements. However, Japanese courts have granted damages against defendants that have only retweeted information over Twitter in recent years. This approach is dangerous as the courts have yet to determine a limit to who can be sued. Furthermore, in the case of public figures, following the traditional standard of loss of social standing and granting damages to users retweeting specific comments might limit public scrutiny of public officials.
As an example, in 2020, the Osaka High Court upheld a lower court ruling that found an independent journalist liable for retweeting a post accusing the plaintiff, a former politician, of driving a public official to suicide. The court held so even though newspaper articles had been published earlier on the matter.