Japan’s Supreme Court in June ordered Twitter to delete specific tweets related to a burglary case that happened more than eight years ago. The plaintiff is a man arrested for breaking into a woman’s dressing room of a traditional Japanese hotel and punished with a JPY100,000 (USD810) fine. His actual name was published in several news articles and tweeted by many Twitter users with links to the news.
During the litigation, all media had removed news articles and disabled any links related to the case, but many tweets including headlines with the plaintiff’s name and links to the deleted news stories remained.
Tomokazu Suwa, of counsel at Nozomi Sogo Attorneys at Law in Tokyo, said that initially, the Tokyo High Court tried to apply a “clearly outweighed” test to Twitter, which the Supreme Court had previously applied to Google in 2017 when a plaintiff requested the tech company to delete some URLs, website headlines and excerpts from the search results. At that time, the court ruled that deletion of search results could only be allowed when the importance of protecting privacy clearly outweighed that of disclosing information.
“The Supreme Court of Japan overturned the decision of the Tokyo High Court and confirmed that a private person has the personal right not to have private information disclosed without an adequate reason,” said Suwa.
“The Supreme Court of Japan found that the ‘clearly outweighed’ test does not apply to Twitter. Consequently, the Supreme Court of Japan ruled that the plaintiff may obtain injunctive relief and Twitter must delete these tweets if the plaintiff’s interest in having private information not disclosed outweighs any other reasons that these tweets should be available to the public on Twitter.”
Suwa explained that the Supreme Court applied a totality of circumstances analysis, noting that the history of a person’s arrest is private information. Although this information was of public interest at the time it had been tweeted, eight years have already passed from the time of the arrest to the conclusion of the oral argument in the Tokyo High Court case.
Under article 34-2 of the Penal Code of Japan, the plaintiff’s sentence has already ceased to be in effect as he completed a sentence with a fine and five years have passed without another sentence with a fine, or without a greater punishment being imposed.
The Supreme Court also saw the purpose of tweets related to the plaintiff’s case seems to serve as “breaking news”, not to keep the news available for an extended period. However, if anyone searches the plaintiff’s name on Twitter, the headlines about his arrest will show.
“If this Supreme Court of Japan decision regarding Twitter does not change its decision regarding Google, it seems likely to conclude that the applicable rules for deletion of private information will likely be interpreted differently between the various platforms in Japan,” Suwa said.
