The online defamation maze: are we finding a way out?

Abstract

The main purpose of this paper is to examine the efficacy of the first decision that explored online defamation (as opposed to offline defamation) delivered by the Supreme Court of Japan. A discussion of the future implications of the case is then undertaken. The paper supports the First Instance (the Tokyo District Court) decision and its approach, and argues that such an approach might have provided greater implications for the future. The author also argues that the Tokyo District Court seems to have taken a more reflective view on the fluidity of online defamation and the nature of the online environment, and shows a degree of willingness to accept and incorporate such a nature. The author concludes that the Tokyo District Court's approach, although it could be seen as rather radical and extreme, seems to be more persuasive than that of the Supreme Court. It also submits that the court might have brought a more balanced and healthy outcome for the beneficiaries, including not only the claimants, the defendants, but also society as a whole. It is the case that innocent internet users can potentially be both the passive and active recipients of the information (i.e. comments posted on webpage). Before a detailed analysis and examination of the case is undertaken, a brief outline of how Japanese law and its jurisprudence have dealt with the traditional form of defamation (i.e. offline defamation) is provided as background.