Wednesday, April 17, 2013

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.

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.

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