Blocking Access to Websites Containing Pirate Editions in Japan

On April 13, 2018, Prime Minister of Japan and his Cabinet ("Cabinet") announced the emergency plan to countermeasure websites containing pirate editions of Manga, Anime and so forth. In this digital era, it is problematic that a vast number of websites containing pirate editions damage creative industries economically. In order to deal with this problem, Cabinet released the emergency countermeasure. See http://www.kantei.go.jp/jp/singi/titeki2/180413/gijisidai.html.

The countermeasure mainly clarified two things: (α) trying to quickly create a new statute to regulate these websites, and (β) (as a current way to handle the problem until the creation,) releasing the governmental legal opinion that if internet service providers ("ISPs") prevent their users from accessing these websites, such blocking does not violate the current Japanese laws. Regarding the statement (β), Cabinet emphasized that it did not demand ISPs to fulfill such blocking but just released its legal opinion. However, it is clear that this opinion has, in effect, a strong influence on IPSs. Actually, it was broadcast that some IPSs already started blocking their users from accessing these websites.

In comparison, some organizations, such as Japan Institute of Law and Information Systems, counterclaimed that such blocking violated "the secrecy of any means of communication," which the Constitution of Japan guarantees. See file:///C:/Users/Narifumi/Desktop/Columbia%20University/CPL/siryou2.pdf.

This article first explains the general description of the secrecy of any means of communication in Japan, and second arrives at the conclusion that such blocking is illegal.

The Constitution of Japan Article 21. II states that "(N)o censorship shall be maintained, nor shall the secrecy of any means of communication be violated." See http://www.japaneselawtranslation.go.jp/law/detail/?id=174.

In accordance with the Constitution of Japan, Telecommunications Business Act ("TBA") Article 4 (1) also establishes that "(T)he secrecy of communications being handled by a telecommunications carrier shall not be violated." Furthermore, TBA Article 179 (1) says that "any person who has violated the secrecy of communications being handled by a telecommunications carrier shall be punished". See http://www.japaneselawtranslation.go.jp/law/detail/?ft=1&re=01&dn=1&co=01&ia=03&x=0&y=0&ky=%E9%9B •E6%B0%97%E9%80%9A%E4%BF%A1%E4%BA%8B%E6%A5%AD&page=11.

It is generally accepted that the secrecy of any means of communication under TBA includes not only contents of telecommunications but also names of telecommunicators, time and places of telecommunications, how long telecommunications last, and so on. This is because the purpose of protecting the secrecy is to effectively guarantee privacy right, freedom of thought and conscience, and freedom of speech. This purpose cannot be achieved without prohibiting others from reaching names of telecommunicators, time and places of telecommunications, and so forth. See Tokyo District Court, Judgment, April 30, 2003 (case number: 2000 (Kei Wa) 3255).

(1) Agreement

First of all, if users allow their ISPs to see the secrecy of any means of their communication, the ISPs can compromise the secrecy.

For instance, when a user tries to access a page on the Internet, she ordinally asks her ISP's DNS server to translate the page’s domain name to its IP address. Then, she accesses the IP address through her ISP's router. In this process, her ISP sees the contents of her communication, such as a destination IP address, so that her ISP seems to violate the secrecy. However, because it is necessary for her ISP to see her communication in order for her to access the page, it can be presumed that she agrees with her ISP's activity at least implicitly. Therefore, in such a case, ISPs are not subject to the violation of the secrecy.

However, when IPSs block users from accessing websites containing pirate editions, it cannot be presumed that the users allow the IPSs to see their communication, because the IPSs see and use their communication not to lead them to access their destination pages but to block them from accessing the pages against their wills. Accordingly, in order to justify such blocking, ISPs need to rely on other exceptions.

(2) Averting Present Danger

It is uncontroversial that ISPs and others may justify the violation of the secrecy of any means of communication if meeting the requirements of "averting present danger." Penal Code in Japan Article 37 (1) defines "averting present danger" as "(A)n act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harm produced by such act does not exceed the harm to be averted". See http://www.japaneselawtranslation.go.jp/law/detail/?ft=2&re=01&dn=1&yo=%E5%88%91%E6%B3%95&ia=03&ph=&x=0&y=0&ky=&page=1.

The principle basically consists of the three requirements: (i) a present danger, (ii) an act unavoidably performed, and (iii) equilibrium between interest which the act violates and that which it preserves. For instance, it is generally recognized that if ISPs block their users from accessing websites containing child pornography, the principle of averting present danger could justify the violation of the secrecy of any means of communication caused by such blocking.

Based on the released opinion, Cabinet interprets that the principle of averting present danger justifies ISPs' blocking of the access to websites containing pirate editions. However, it is extremely doubtful that such blocking meets the requirements of averting present danger.

In cases where ISPs block their users from reaching websites containing child pornography, it is true that the existence of those websites itself does significant damage to the moral rights of the children, who are the victims of the child pornography. Furthermore, once child pornography is distributed in the Internet, the victims incur unrecoverable damage to their moral rights. It is clear that the moral rights of children, like the secrecy of any means of communication, are one of the most important interests, which law must preserve. Therefore, the principle of averting present danger could justify the blocking of the access to child pornography because such blocking could meet all the requirements including the requirement (iii). By contrast, in cases where ISPs block the access to websites containing pirate editions, such blocking just preserves copyrights. Copyrights are one of the property rights, which are basically not so important as the moral rights or the secrecy of any means of communication. In addition, damage to copyrights is recoverable by money. Accordingly, IPSs' blocking of the access to websites containing pirate editions probably would not meet the requirements of averting present danger, especially (iii) equilibrium between interest which the act violates and that which it preserves.

In conclusion, the principle of averting present danger probably would not justify IPSs' blocking of the access to websites containing pirate editions.

It goes without saying that Japan is a law-governed nation and a civil law country. Therefore, limiting rights of its citizens or imposing duties on them shall be based on statues. In the course of creating statues, Congress discusses various relevant matters in public, the process that leads to preserving rights and freedom. As demonstrated above, ISPs' blocking of the access to websites containing pirate editions is probably illegal under the current Japanese statues. Accordingly, such blocking shall be based on a new statue, not on the governmental legal interpretation of the current statues. Otherwise, there is a significant risk that such interpretation could infinitely extend limit on the secrecy of any means of communication.