Introduction

On 21 April 2021 the amended Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (Provider Liability Limitation Act) was enacted. The act is scheduled to take effect in Autumn 2022. The amended act is intended to significantly change the existing procedures for disclosing sender information with the aim of easily and promptly identifying senders; the practices of both petitioners and providers are expected to be significantly affected. This article provides an overview of the amendments.

Existing sender information disclosure procedures

The Provider Liability Limitation Act, established in 2001, defines procedures for disclosing sender information. Specifically, any person who alleges that their rights have been infringed in the distribution of information (typically through comments on social media) may request a service provider to disclose sender information when:

  • it is evident that the person's rights have been infringed (the clarity of infringement requirement); and
  • there is a justifiable reason to disclose such sender information (Article 4(1) of the Provider Liability Limitation Act).

In principle, a provider which receives such a request will decide whether to disclose the information upon hearing the opinion of the sender – typically, the person who posted the relevant comment (Article 4(2) of the Provider Liability Limitation Act). By following these procedures, the sender is identified and recovery is sought by such means as claiming damages against the sender based on tort. This is how the current system functions.

Process When any post that infringes the rights of others, such as a slanderous comment, is made on the Internet via social media or other means, the victim may directly seek out the content provider which manages the server that records the infringing post (a content provider manages and operates a server on which website information is recorded). Thus, in many cases, requests for sender information disclosure are directed to such content providers. However, content providers often do not possess sender information, such as names and addresses. The only information that they may have relating to senders would be IP addresses used at the time of posting. Under those circumstances, victims make additional requests for the disclosure of sender information as they trace back the network path starting with the IP address obtained from the content provider.

In most cases, content providers do not (or cannot) voluntarily disclose sender information outside of court because it is often difficult to judge whether a particular case satisfies the disclosure requirements under the Provider Liability Limitation Act. Accordingly, in many cases, a request for disclosure of sender information is made through a judicial process. However, this takes considerable time because two stages (or more in some cases) of judicial process are required for each of the following disclosure requests:

  • a request for disclosure of sender information made to a content provider; and
  • a disclosure request made to an access provider (an access provider is a provider of communications services that connect to the Internet – namely, a connection provider or internet service provider).

Meanwhile, major access providers generally keep access logs for approximately three months and need not retain them under Japanese law. Therefore, it is likely that the access provider will no longer hold the relevant information (or that such information has already been lost) when a disclosure request is finally approved in court proceedings.

As outlined above, the issues arising from the current legal system are the heavy burden of court proceedings for identifying a sender and the restraint on realising relief due to the required time and costs of litigation.

New non-contentious case procedure system

Based on an awareness of the issues discussed above, it was decided that the Provider Liability Limitation Act would be amended to establish a new judicial procedure (for non-contentious cases) that is specifically designed for the disclosure of sender information without significantly changing the substantive requirements (Articles 5 to 17 of the amended act).

Under the new system, the courts may issue the following orders in a non-contentious procedure:

  • a disclosure order (Article 8 of the new act) – an order demanding that a content provider and an access provider disclose sender information;
  • a provision order (Article 15 of the new act) – an order demanding that a content provider supply a victim with the name of and other information relating to an access provider, and provide the access provider with any infringement-related information that the content provider possesses while keeping the information confidential to the victim; and
  • a non-deletion order (Article 16 of the new act) – an order prohibiting an access provider from deleting sender information relating to rights infringement based on the sender information provided by a content provider.

A disclosure order is equivalent to a judgment or decision under the current system. Provision orders and non-deletion orders are new orders that are not available under the current system.

Provision orders and non-deletion orders are primarily designed to promptly preserve logs. Specifically, the provision order enables prompt identification of an access provider using sender information held by a content provider. If the access provider has the relevant sender's address and name, the non-deletion order enables prompt confirmation of specific communication logs relating to the infringement and the name and address of the sender associated with such communication logs. Further, the non-deletion order enables the preservation of these logs until a disclosure order is issued against the access provider.

The new system is intended to avoid, as much as possible, a situation where the necessary information has already been lost by the time that the court proceedings have reached the final stage after a long series of procedures (thus making the entire process ineffective).

The reason for not disclosing to the victim the content of the information to be supplied by the content provider to the access provider based on the provision order is because the content of such information is designed to be disclosed to the victim when and only if it is has been determined through the process of the disclosure order that the requirements for disclosure have been satisfied.

Process Under the new system, it is assumed that the process of issuing a disclosure order to a content provider and the process of identifying an access provider and preserving logs (via a provision order and non-deletion order) are carried out simultaneously. Where the access provider is successfully specified by the provision order, and when the victim, who has been notified of the access provider's name, files a petition for a disclosure order against the access provider, such access provider will immediately be made part of the relevant process taking place for the disclosure order against the content provider. Both the content provider and access provider will then be examined collectively by the court and the disclosure order will be issued against both of them. This is the process created by the new system. In other words, the new system assumes that multiple petitions will be filed in a single procedure.

Even with a provision order, an access provider may not be successfully identified from the information held by the content provider. In such a case, the content provider is required only to indicate that this is the case; a process equivalent to the one under the current system may still be followed.

Senders' involvement The treatment of senders (those who post comments) has not changed significantly under the new system. When a provider receives a request for disclosure of sender information, the provider must, in principle, hear the opinion of the sender. If the sender objects to the disclosure, the provider must notify the sender of the disclosure order without delay (Article 6(2) of the amended act). However, the sender is not expected to be involved as a party in the judicial procedures for disclosure orders.

Final and binding judgment Under Article 14 of the new act, it is possible to file an objection to a disclosure order or a dismissal of a petition within one month. Such objections will be heard via ordinary judicial procedures. If no such objection is filed, the disclosure order will have the same effect as a final and binding judgment (Article 14(5) of the amended act).

Foreign service providers Under the new system, a provision regarding the jurisdiction over a petition for a disclosure order is stipulated (Articles 9 and 10 of the new act) and foreign providers are subject to the Japanese courts' jurisdiction to the extent that their business is conducted in Japan (Article 9(1)(3) et seq of the amended act).

In addition, it has been stipulated that copies of court documents and other materials must be sent to the counterparty and that the parties' opinions must be heard before a disclosure order is issued (Article 11 of the new act). On a practical level, it is expected that cases will be treated with flexibility to ensure the efficient operation of the system, considering the opinions and responses of foreign service providers.

For further information on this topic please contact Kei Akagawa or Sho Ando at Anderson Mori & Tomotsune by telephone (+81 3 6775 1000) or email ([email protected] or [email protected]). The Anderson Mori & Tomotsune website can be accessed at www.amt-law.com.