Supreme Court of Japan: Deletion of Tweets on Twitter

by Toshihiro Wada//

The Supreme Court of Japan (SCJ) adjudicated for the first time on the deletion of tweets on Twitter which referred to the arrest of a specific individual.¹ This article describes the new judgment of the SCJ.

A. Facts

In April 2012, the petitioner in the case had been arrested for breaking into a building.² The Japanese media reported the arrest on their websites and via Twitter. Tweets included links to the story and the name of the arrested man. The tweets in question could be found by a search on the man’s name on Twitter. The petitioner had asked the respondent, Twitter Inc., to delete the tweets that named him. Twitter refused. The petitioner argued that this violated his interest in not having a private fact disclosed without reason.

In May 2012, the petitioner had paid the fine meted out as punishment. At the time of his request for deletion of the tweets, the media had erased the news story about his arrest that had been linked to from the URL in the tweets.

B. Framework for decision

I. Injunction based on personal rights

During the judgment the SCJ deduced from its decisions in previous cases³ that an individual’s interest in the non publication of a fact pertaining to that individual’s privacy is protected under the law.⁴ This is also applicable to material published online. Therefore, an individual may make a request to the publisher to have published material removed, or may request an injunction to prevent future publication of such material, where the individual’s privacy or their personal interest is jeopardised by the material being public.⁵

II. Examination of the balance of judgment made

The SCJ balanced the petitioner’s interest in not having the fact of his arrest disclosed (the first matter) against reasons for the tweets to remain publicly findable (the second matter). If the first matter overrides the second, the petitioner may request the deletion of relevant tweets. The SCJ considered the following factors for this balance examination:

1. Nature and content of the fact (in this case, the facts pertaining to the arrest, for instance, who was arrested and why),

2. the extent to which the tweets disseminated this fact and the degree of concrete damage to the petitioner thus arising,

3. the petitioner’s social standing and influence,

4. the purpose and significance of the tweets and

5. the impact of the tweets in question on society in general.⁶

The SCJ analysed the above-mentioned five factors as follows: On the one hand, the petitioner does not want the fact of the arrest to be known without reason by others. It is a private matter. On the other hand, the arrest is a fact in the matter of the crime, so it is linked to public interest at the time of publication of tweets from the media. In the 8 years between his arrest and the close of the oral argument in the court of second instance of this case⁷, the penalty had been long spent and the public interest argument – the second matter – was considerably weaker⁸. In addition, the media had already deleted the news about his arrest on their websites.

Tweets serve to report current news stories, where topicality and immediacy are part of their value. They are not necessarily intended nor much used as a permanent record. The tweets in question long ago lost prominence amid a multitude of posts on Twitter. However, it is probable that acquaintances unaware of the petitioner’s history could still discover tweets about his arrest when searching for his name in Twitter.⁹

The petitioner works with his father and does not hold any official position.¹⁰

The SCJ concluded from the above factors that the first matter outweighed the second. The petitioner may request the deletion of tweets in question against the respondent.

C. Summary

It was the first time that the SCJ dealt with a case regarding the deletion of tweets on Twitter. Tweets that reveal a private matter in an individual’s history can violate the individual’s interest in not disclosing the matter in the present day if they remain published and findable. The individual may request the deletion of tweets on the grounds of their personal rights or personal interests provided that their interest in not disclosing the private fact – which is protected under the law – outweighs reasons for the tweets to remain publicly findable.