A Japanese Court ordered Google to Enjoin Suggestion Function

In a French case, the court ordered Google Inc. to pay damages because of harmful suggestions when users enter the plaintiff's name. This kind of case also happened in Japan.

On April 15, 2013, Tokyo District ordered a preliminary injunction to enjoin a part of the Google's suggestion function. When you enter a key word, Google automatically suggests related keywords. When one man searched his own name, Google suggested a crime-related word with his name. As a result, users could easily search the allegedly fraudulent web articles which associated him with criminal conducts.

First, he sought a preliminary injunction (karishobun). In Japan, a preliminary injunction is granted when (1) there is a right to protect and (2) a necessity for the preliminary injunction.
In the case of enjoinment based on privacy invasion, the petitioner should at least show that (1) the tort claim is likely to stand and that (2) enjoinment is necessary for avoiding substantial detriment or imminent danger. In 2012, Tokyo District Court found both and issued a preliminary injunction. However, Google Inc. did not comply, saying that adding a search keyword is not a privacy invasion and is lawful according to U.S. laws. Therefore, he sued Google for damages and a permanent injunction. In an unreported judgement on April 15, 2013, Tokyo District Court agreed with him, awarding both damages and a permanent injunction.

Professor Sonoda commented that the Tokyo District Court opinion introduced European concept of "rights to be forgotten."

As the court opinion has not been published yet, I cannot comment on whether or not the court found the rights to be forgotten and if so, in what circumstances plaintiffs can assert such rights. However, two things can be said.

One good thing for the plaintiff is that in 2012, the Civil Procedure Law was amended to clarify the jurisdiction of Japanese courts on international cases. As a result, it has become easier for Japanese plaintiffs to ask for a Japanese court to decide on the merits even if the defendant is a foreign company. This may have contributed to the victory of the plaintiff.

But one bad thing is that it is still unclear whether Google will follow the order. An American lawyer might ask whether Google's conduct is a contempt of the court. In Japan, however, there is no general "contempt of the court" concept. (Note that some actions such as hindering the court procedure are illegal under a Law Concerning the Maintenance of Order in a Court of Law.) As a result, how to enforce a court order is important in Japan. As he got a permanent injunction, after the judgment becomes final, he can seek enforcement under the Civil Execution Act. One of the possible ways is by indirect compulsory execution, which asks the court to order a monetary sanction against the defendant in compliance with the original order. (Like A shall pay B $100 per day until A stops suggesting keywords when users search "B.") But as Japanese sovereignty does not extend to the USA, the enforcement is still unclear.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Amicus Curiae in Japan

Amicus Curiae, or a friend of court, submits a brief as a third party. An amicus brief is especially important in a case where a non-sympathetic figure is involved. A judge may focus on the fact of the particular case and forget the implication the opinion has to other cases. An amicus brief can let the judge know the broader concerns around a case.

In Japan, however, there is no Amicus Curiae, although there are arguments for its introduction. For example, the Japanese Civil Liberties Union (JCLU) proposed the introduction of the Amicus system in 2009. Last year, the Amicus Brief Committee of Japan Patent Attorneys Association (JPAA) published an opinion explaining the concept, importance and challenges of the Amicus Curiae.

I believe that the Amicus Curiae can play a very important role even in Japan. One example is the Google Streetview case. In this case, as I described previously, the plaintiff was not represented by an attorney in the district court and the appellate court also dismissed her claim although attorneys represented her in appellate level. I believe that as a privacy issue of Streetview can involve significant policy considerations, the case would be very appropriate for submitting an Amicus Brief. Therefore, I agree that the Amicus Curiae System should be introduced to the Japanese legal system.

However, JPAA's opinion has some problems. For example, the opinion indicated that the Amicus Brief in Japan would be prepared without reviewing the briefs of the parties. It is true that briefs are not uploaded onto databases in Japan. (Note that briefs can be viewed at a Japanese court.) But amici in the USA sometimes ask the parties to disclose their briefs and obtain their cooperation (especially in state court cases). Even in Japan, reputable institutions can obtain briefs from the parties if the parties understand the importance of the Amicus Curiae.

Another challenge not focused on in the JPAA is who will write the Amicus Brief. The Japan Federation of Bar Associations which frequently opines on civil liberties case, and some other NGOs such as JCLU (note, however, that JCLU members are only around 600) or MIAU (Movements for the Internet Active Users) could be possible amici.


DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog. 

Journalist "Cracker" and CFAA

The hottest issue of the Japanese ICT field is the "cracking" conducted by a journalist of a reputable news service. The journalist was gathering news on the high-profile fake blackmail case which I previously posted. Somehow, the journalist guessed the password of the suspect's web-mail account and browsed the inbox and other folders. As you may recall from my previous post, the Japanese version of the CFAA criminalizes the usage of fraudulently obtained ID/passwords and according to the Ministry of Internal Affairs and Communications, this password guessing was the most frequently used method of unauthorized access in 2008. So, it is likely that the conduct of the journalist is a prima facie CFAA violation. The question is whether the journalist's conduct can somehow be justified.

On this issue, the Supreme Court held that the freedom of news gathering for the news report deserves sufficient protection in light of the spirit of the (Japanese version of) First Amendment, in In Re Subpoena against RKB Mainich Broadcast Co., 23-11 Keishu 1490 (November 26, 1969). However, that does not mean that anything journalists do would be justified.

I already posted on one old case where a journalist who had a sexual relationship with a government official to obtain secret information was convicted. Further, in another old case, a journalist received a piece of important evidence from a criminal group and eventually burned it up (allegedly, to avoid being confused as a group member). The prosecutor accused him and he was convicted in People v. Doe, 703 Hanrei-Jiho 121 (Urawa District Court, September 27, 1972). The court stated that it was regretful that the journalist approached the information source without consideration and made intimate connections which resulted in him assisting the criminal group.

Relatively recently, two new cases were held. Although they do not directly deal with typical journalists, they are somewhat relevant. One case is an environmental protest group case. Group members, who wanted to investigate and report allegedly unlawful whale-hunting stole a piece of whale meat. Although they argued that it was necessary information gathering, the court did not buy the argument. The court held that even an investigation for public interest cannot be justified unless conducted so as not to invade other people's freedom and rights, and convicted them. This was an unreported case of Sendai High Court on July 12, 2011.

Another case is that a journalist approached a doctor who was appointed as an expert on a high-profile criminal case and had some secret documents of the case. The doctor lent her the documents and later she wrote a book using the information. Both the journalist and doctor were arrested but only the doctor was prosecuted and later convicted. Nara District Court stated although more deliberate and careful review was necessary in the case of journalist, as the doctor accused was only an information source, the level of scrutiny is different and was thus denied justification. People v. Doe, 2048 Hanrei-Jiho 135 (Nara District Court April 15, 2009). The conclusion of denying justification is affirmed by the Supreme Court in People v. Doe, 66-44 Keishu 405 (Feb 13, 2012).

As of now the information is scarce, and as a result, I cannot say whether the acts of a journalist "hacker" are justifiable. But three things can be said. First, prosecutors seem to respect the freedom of the press when they exercise their discretion on whether to accuse a suspect. So, there is a possibility that the prosecutors will decide not to accuse the journalist, like in Nara's secret document case. Second, once a journalist is accused, the chance of acquittal might not be very large considering the courts' attitude in two old cases. Third, the defense should focus on the distinction Nara District Court made (and Sendai High Court might have made implicitly) between real journalists and others (such as information sources or activist groups). The defense counsel can emphasize the fact that the journalist belongs to a reputable news service but, as I said, I am not sure whether this line of argument acquits the journalist. 

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Japanese Whistleblower Protection Act - Will Japanese Manning be Protected?

Professor Yochai Benkler recently wrote a persuasive article on the Bradley Manning case. I believe that the result of this case may have an impact of chilling off potential whistle-blowers. Then, what about Japanese whistle-blower protection?

Japan has the Whistle-blower Protection Act ("WPA" )which essentially categorizes three types of whistle-blowing.
One type is internal whistle-blowing like the boss or the ethics hotline. In such a case, whistle-blowers are strongly protected. Only as long as the whistle-blower considers the illegal facts occurred or were about to occur, whistle-blowing is protected. Article 3(i).
Another type is whistle-blowing to administrative authority. In this type, intermediate protection is given. When there are reasonable grounds to believe that illegal facts occurred or were about to occur, whistle-blowing is protected. Article 3(ii).
The other type is whistle-blowing to mass media or other organizations neither internal nor administrative authority. In this case, at least, there should be reasonable grounds to believe that illegal facts occurred or were about to occur, but that is not enough. Additionally required are reasonable grounds to believe either (1) other types of whistle-blowing would cause lay offs or other disadvantageous treatment, (2) internal whistle-blowing would cause concealing the evidence, or (3) the boss asked the whistle-blower not to resort to whistle-blowing. Article 3(iii).

The "protection" means the prohibition of firing or any other disfavorable treatment because of the whistle-blowing. Article 3 to 5.

One good thing is that the WPA covers the protection of government officials. Article 7. Also, the Q&A by the government on the WPA stipulates that as the protected whistle-blowing is on illegal acts, it is considered not worthy of protecting as secret, therefore whistle-blowing would not violate the obligation of confidentiality. This means that if the requirements of the WPA are met, Japanese Manning may receive protection.

But there are some uncertainties. One of them is how the court would interpret the statute. In one well known classic case, the Japanese Supreme Court upheld the conviction of a journalist of a newspaper for soliciting to disclose classified information. People v. Nishiyama, 32-3 Minshu 457 (May 31, 1975). Although the way he seduced a female government official is questionable from the journalists' ethics (he approached the official and formed a sexual relationship for obtaining classified information), this case would suggest that depending on the circumstances, the court may interpret the language of the WPA very strictly.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

New Victory of Apple against Samsung in Japan

Apple and Samsung have been fighting over IP all over the world. On February 28, 2013, Tokyo District Court ruled for Apple on the Japanese litigation between the parties. Unfortunately, Japanese court opinions are not disclosed automatically and even if it is obtainable, it will take some time until I can review the whole court opinion. So, I actually have not read the court opinion yet. However, according to the news report, this court opinion seems to be epoch-making in terms of Japanese patent law.

In this case, Samsung alleges Apple's infringement on Samsung's patent on 3G telecommunication technology. The court found the prima facie case for Samsung saying that Apple's products including iPhones are using the technology within the scope of Samsung's patent. However, Apple pointed out that Samsung made a "FRAND" announcement, which is to show its willingness to license the Standard Essential Patent (SEP) fairly, reasonably and non-discriminatorily and although Apple asked for license, Samsung did not negotiate with Apple in good faith. Apple argued that Samsung's patent infringement claim is an abuse of its right considering the FRAND announcement and Samsung's bad faith attitude during the license negotiation. The Tokyo District Court bought this argument and judged in favour of Apple.

Traditionally, abuse of right has been used in the context of patent. But in most cases, the concept is used when the holder of a patent has filed an infringement suit and such patent is null and void. For example, Japanese patent law, like the American equivalent, requires "novelty." But sometimes, the Japanese Patent Office misses important prior arts and issues a patent. In such a case, the patent can become null and void through an internal process similar to the re-examination process in the US. In Texas Instruments v. Fujitsu, 54-4 Minshu 1368 (April 11, 2000), or Kilby case, the Supreme Court of Japan ruled that if it is clear that the patent should be nullified, then even before the patent is actually nullified, the patent holder's claim is an abuse of right. After the judgment, the Japanese Patent Law was amended and Article 104-3(1) similar (but not identical) to the Kilby opinion was introduced. However, the Samsung case is not in this kind of context. It is the first time in Japan that a court found an exercise of patent as abuse of right because of the FRAND announcement of the patent holder.

As this is merely a district court level judgment, Samsung can appeal to the Intellectual Property High Court. So, whether this judgment will become final is not yet clear. Also, as the court opinion was not disclosed to the public, I could not check the detailed and concrete reason why the court found Samsung's action to be an abuse of its right. However, as the "FRAND" announcement is widely seen, the impact of this judgment can be enormous. I plan to update on this issue after reviewing the court opinion.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Japanese Copyright Law on User's Modification

In the U.S., it seems that, in general, copyright owners have a prima facie case against users' modifications and the issue is about whether users can establish a fair use defense. For example, in the case of Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cir. 1992), the producer of Genie Video Game Enhancer, which allows players to alter the video game, the court held that consumer's temporarily altering the video game does not create derivative work and that the fair use doctrine is applicable for the usage of the Enhancer for personal enjoyment (Note, however, that the case is distinguished by Micro Star v. FormGen Inc., 154 F.3d 1107 (9th Cir. 1998).). A not identical, but similar case was litigated in Japan. The Konami v. Spec Computers, 55-1 Minshu 87 (February 13, 2001), or Tokimeki Memorial case. 

Konami, a major games company in Japan produced a game called "Tokimeki Memorial." It is a kind of dating simulation where the hero (which the player controls) communicates with female classmates in a high school and if the hero satisfies certain requirements such as a certain amount of artistic skills, sport skills, intelligence and other parameters, the hero will receive a declaration of love from the heroines at the time of graduation and have a happy ending of the game. Many people played the "original" version of the game, but some people felt that meeting the requirement for a happy ending is not easy. Also, under the original version, it takes some time and effort to attain a certain amount of parameters until the female student characters come up during the story (that means that at the beginning of the game, the hero can only meet with male classmates until the time the hero has enough parameters) and some people felt that it was not a good idea. Spec Computer, the defendant, sold special memory cards with which the parameters information are already recorded. By making use of the memory card, game players can easily meet the requirements and receive a declaration of love. Moreover, because of the high parameters, the players can meet with female characters at the beginning of the game, which was originally impossible. Konami sued Spec Computer for damages.


Konami could argue the creation of derivative work but they did not. Rather, Konami chose the route of moral rights infringement, which seems to be easy in Japan. Different from the U.S., in Japan the moral rights of the authors are widely protected. You may think it odd to think of the moral rights of game software authors, but I believe that Japan imported a European copyright law, which embodies the so called "personhood" theory of copyright.

(Right of preserving the integrity) 
Article 20. (1) The author shall have the right to preserve the integrity of his work and its title against any distortion, mutilation or other modification against his will.

Article 20 of the Japanese Copyright Law provides the rights of the author to preserve the integrity of the work. The Supreme Court found that the memory card changed the parameters of the hero and as a result the story of the game was narrated beyond the originally planned scope and thus "modifi[ed]" the story.

Spec Computers argued that it was not they but the users who were altering the story. However, the supreme court did not buy the argument. The court found something similar to the American concept of inducement theory held in MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). Spec Computers sold the memory card knowing that users could actually use the memory card to modify the story. The court ruled that Spec Computers indued a third party (namely, the users) to infringe the copyright of Konami and were thus liable for their contribution.

As the facts are different between Nintendo and Konami, I cannot conclusively say that the same thing as Konami would happen in Japan if the Nintendo case were to be brought to Japan. But I think this is an example of an interesting contrast between Japanese and American copyright laws, especially on moral rights.

March 14, 2013: I encountered an interesting article on Grokster, which you may want to read.  
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Copyright Registration No "Prima Facie" Evidence of Copyright Validity in Japan

In the U.S., the effect of copyright registration is strong. According to 17 U.S.C. Article 410 (c), "the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright" in legal proceedings. The reason is that the U.S. Copyright Office checks whether the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met. Article 410(a). However, this is not the case in Japan.

In Japan, the effect of copyright registration is much weaker. One recent court opinion stated that because the registration application is only checked from the viewpoint of whether the application form is in accordance with the format stipulated by the law (see Order for Enforcement of Copyright Law Article 23), the registration has neither the effect of legal assumption of validity of the copyright, nor the de facto effect of presumption of the copyright validity. April 27, 2011, Tokyo District Court (unreported).

To supplement some basics, in Japan it is even not required to register a copyright for a litigation. You may commence a copyright litigation (such as infringement) without any registration. You may also license or assign the copyright without registration. When, then, do people use copyright registration in Japan? Actually, in some relatively rare cases. 

There are three main kinds of registration: (1) real name of the author, (2) published or created date, and (3) transfer or license.  Here's an official manual for registration (in Japanese).

First, if an author publishes a work with a pseudonym or anonymously, the protection of the copyright is generally 50 years after the published date. However, by registering the real name, the author of the pseudo-named or anonymous work is presumed to be the registered author and the protection extends to 50 years after death of the author. Article 75 of the Copyright Law.

Second, the published date of the works and created date of software can be registered, which presumes the published or created date. Article 76 and 76-2 of the Copyright Law.

Third, when a copyright is assigned or publisher's license is issued, such assignment or license can be registered. Article 77 and 88 of the Copyright Law. In practice, such registration rarely happens. This means that in many transactions, people do not register their transactions. For example, I already co-authored some books which means that I issued a publisher's license to the publisher. But none of the license contracts have been registered. The reason is that usually there would be no conflict on the assignment or transfer of the copyright. However, if you reasonably suspect the possibility of double sale (or double license), the registration is necessary, because whoever first obtains the registration becomes the lawful assignee or licensee. Possibly the publishers think I am a trustworthy lawyer and do not need to worry about a double license!

For your information, the registration of software is conducted at the Software Information Center (SOFTIC) and the other kinds of works are registered at the Agency for Cultural Affairs.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Google News Settlement in France - How about Japan?

Google settled in France to pay 60 million Euros for establishing a fund for its Google News using the titles and snippets. What happens if Google or other companies use the headlines and a few lines of news from the news websites without a license in Japan? 

There is a similar case in Japan called Yomiuri v. DAC Corporation ("DAC"). Yomiuri is a major newspaper company running a news website called Yomiuri Online. DAC started a service where they distribute the headlines of news websites including Yomiuri Online called "Line Topics." Yomiuri sued DAC for (1) infringement of copyright and (2) a tort claim.

The Tokyo District Court denied both of the claims. 1857 Hanrei Jiho 108 (Tokyo District Court, March 24, 2004).
For the first copyright claim, the court found that it was too short. As the headlines are made for the purpose of telling the contents of the news to the reader, there is little choice of the expression. This is something similar to the merger doctrine in American copyright law.

On the issue of tort, Tokyo District Court also denied Yomiuri's claim saying that as there is no exclusive right of Yomiuri, it is free for DAC to make use of such information. 

Yomiuri appealed and the Tokyo High Court reversed the trial court's judgment (Intellectual Property High Court, October 6th, 2005).

First, on the copyright issue, the High Court agreed with the District Court. The points the High Court mentioned were that these headlines are merely facts expressed in a standard way and there is no creativity that the Japanese copyright law requires for the protection.

Second, on the tort issue, the court found that DAC was liable. Although the court's opinion is not a simple one, the punchlines are the following:

The court found that what DAC was merely dead-copying or doing something quite similar to dead-copying. In contrast, Yomiuri is taking the time and effort to make the headlines. The court found that for a tort claim to stand, it is not necessary to say that copyright or other rights were infringed, what is necessary is that the interests that are protected by the law are illegally invaded. Finding out that DAC is benefiting from advertisements and that Yomiuri is also trying to profit from advertisements, the court concluded that both companies' businesses are in a certain part competing. As a result, the court found that Digital Media had gone too far and it was not legally acceptable. Therefore, the court reversed the judgement and awarded Yomiuri damages. This is something like a "sweat of the brow" argument.

There are many interesting points of this case, but what I found interesting compared with French case is that it is virtually impossible to think of a 60 million Euro settlement. In the Yomiuri case, only 237,741 yen was awarded to Yomiuri. This is a little more than $2,000. The calculation of the court is 10,000 yen (about $100) damages for one month of operation. Of course, Google News is using snippets in addition to headlines and the snippet might enable a copyright claim and increase the amount of damages. But 60 million Euros seems to me to be going too far. It is often said that the amount of damages awarded in Japan is small. This might be another good example of how small Japanese damages are.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Isamu Kaneko - Japanese Aaron Swartz?

The tragic suicide of Aaron Swartz invoked a controversy over many issues including the ambiguity of the CFAA.

In Japan, there was a possibly comparable case called People v. Isamu Kaneko, or "Winny Case." Isamu Kaneko is a programmer who has a doctoral degree from Ibaraki University and was selected as a member of Exploratory IT Human Resources Project by the Information-technology Promotion Agency, Japan (IPA). As a programmer, he released a very innovative software in 2002 called Winny.


Winny is a P2P file sharing software which solved some of the problems the existing software had. (As the existing software was called win"MX", the software was called win"NY" using following letters of the alphabet.) The most innovative point is that Winny worked purely peer to peer. That means that Winny does not need any central server containing the information of the clients. Old P2P software had central servers and they often crashed, resulting in huge system failures. Without them, Winny network is very stable and reliable.

However, after Dr. Kaneko uploaded the software, it was welcomed by many Japanese Internet users who wanted to share video clips or music files with others. Of course, like Napster, most of such files are shared without authorization of rights holders. What happened is that the police found Dr. Kaneko as the symbol of the evil of copyright infringement and arrested him. In 2004, he was accused of the "assistance" of copyright infringement. Note that in Japan, although there is no general "conspiracy" crime, mental or physical "assistance" of an actual crime constitutes a crime.

The case continued for six years. After he was found guilty in the first instance court in Kyoto (December 13rd, 2006), he was found not guilty in Osaka High Court (October 8th, 2009). In Japan, the prosecutor may appeal to the judgment of an acquittal. The prosecutor appealed to the Supreme Court and on December 20th, 2011, the court rendered a 4 to 1 split judgment whereby the majority opinion affirmed the Osaka High court's acquittal. (We have a double jeopardy principle, but it is understood that the principle works only after the final and binding judgment.)

The majority opinion found that what he did was objectively an assistance to copyright infringement. However, Japanese criminal law requests subjective intent of committing a crime of assistance. As Dr. Kaneko did not recognize that "not exceptional percentage of users" were using Winny for copyright infringement, he was barely acquitted.

There are some criticisms. One is that the threshold for the crime of providers of neutral tools should be higher. Some contend that Winny can be used for both lawful and unlawful purposes like a knife. In a crime-filled neighborhood, not an exceptional percentage of buyers of knifes would use them as tools for crimes. According to the Supreme Court's standard, the knife seller would be guilty of assistance crime in this hypothetical. The opponents to the majority opinion contend that the threshold to find a tool provider to be guilty should be very high.

I am personally interested in another aspect of the case. From the arrest in 2004 and until acquittal in 2011, Dr. Kaneko needed to concentrate on defending the case, not on programming. That 5 years might have enabled him to develop other innovative software. This means that the prosecution itself might have deterred innovation. Considering Dr. Kaneko's case and Aaron Swartz case it may be safe to say that the prosecution should be decided with utmost caution when it comes to the leading-edge conduct of innovative people, considering the potential long-running damage to the society.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Japanese IT Litigation 1

To understand the Japanese IT litigation, it is important to know the difference between the American and Japanese systems of civil procedures. Some of the important aspects are (1) no jury in civil procedures, (2)virtually no discovery, and (3) most cases are decided on merit.



First, although we introduced a quasi-jury system "saibanin system" into some criminal cases, all the civil cases are conducted as bench trials. The judges' decision-making basically means a more predictable outcome, more reliance on documentary evidence (than witness testimony), and a more or less lengthened hearing (as there is less need for a "condensed" trial within a few days or a week for the jury).

Second, although the Japanese Code of Civil Procedure has an order to submit a document (Article 221-), where the court orders a holder of a document for submission, the system does not function very well overall. One of the reasons for this is the difficulty to determine the conditions and exceptions for the obligation to submit a document, which are not so widely and generally provided as "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense" in 26(b)(1) of the Federal Rules of Civil Procedure. (Note: Although the Japanese Code introduced a "general" obligation to submit a document by the
amendment, there are important exceptions, which mean that courts nevertheless have to contemplate whether the case falls into any of the categories for exceptions.)  I know that some people criticize this as contradictory, saying that if judges find documentary evidence important, then the range and scope of discovery should be wider than the American system.

Third, although some cases are dismissed on procedural grounds (such as jurisdiction), as long as the plaintiff is represented by a lawyer, it is extraordinarily rare that a case is dismissed on procedural grounds alone. I only experienced one case where the court ordered to revise the complaint within a certain deadline (otherwise the complaint would be dismissed), but this was a case where the plaintiff was not represented by an attorney (and because the plaintiff duly revised the complaint, the case went into the phase of being judged on its merits).  Some of the reasons are that as we virtually do not have a discovery and jury trial, we do not have much necessity for the 12(b)(especially 12(b)(6)) motion to dismiss the case in order to let the defendant get out of the case before discovery.  If the case is dubious, then the court will quickly dismiss the case on merit.  Also, there is no such thing as summary judgment in Japan.  If the cases are appropriate for a summary judgment, then the judges just try to proceed the case quickly and render a final judgment. (N.B., Intermediate judgment
(chukan hanketsu) in Japan is not a summary judgment but a judgment rendered, for example, in order to show that the defendant owes liability and after the intermediate judgment, the parties continue the litigation to assess the amount of damage the plaintiff is entitled.)

In summary, without a jury trial and virtually no discovery, Japanese litigation is cheaper than American litigation and therefore the case is fought mostly on its merits rather than technical procedural issues such as "whether the plaintiff stated a claim."  But this does not mean that Japanese lawyers and information technology companies love litigation.  In general, most practitioners, at least in the field of IT, try to avoid litigation. The "Japanese IT Litigation" series article will describe why Japanese practitioners do not love IT litigation, how people in this field should act to avoid IT litigation, and what they should do when they are either actually sued or when there is no other way for them but to commence a lawsuit.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.