9 February 2017
The Supreme Court of Japan (‘the Supreme Court’) dismissed, on 31 January 2017, an appeal from a man seeking the removal of reports relating to him having committed a serious crime from search results indexed by Google, Inc. (‘the Decision’). The Decision arrives after a district court in Saitama upheld the man’s claim in December 2015, explicitly referencing his right to be forgotten (‘RTBF’). In contrast, the Supreme Court did not make reference to the RTBF in its dismissal.
Kaori Ishii, Associate Professor of Information Law at the University of Tsukuba, told DataGuidance, “The Supreme Court decision is fundamentally different from Case C-131/12 Google Spain v. AEPD and Mario Costeja González (‘Costeja‘), decided in 2014. In Costeja the Court of Justice of the European Union (‘CJEU’) held that, in general, the rights of the data subject ‘override […] not only the economic interest of the search engine but also the interest of the general public in having access to the information.’ The Supreme Court, on the other hand, stresses the interests of the search engine.”
The CJEU’s approach and that of the Supreme Court in relation to the RTBF cases diverge. Whereas in Costeja the CJEU emphasised the rights of the data subject under various European legal instruments, the Supreme Court decided that an individual is entitled to demand a search engine delete a search result created by its index ‘only when’ the individual’s interest not to be subject to publication is ‘obviously superior’ to the interests achieved by publication.
Ryuichi Nozaki, Director at Atsumi & Sakai, highlighted, “In applying this test to the case, the Supreme Court concluded that it found no such obvious superiority, because […] the crime in question is strongly condemned by society, and search results only appear when both the individual’s name and the prefecture where he lived were entered, thus limiting the dissemination of the facts.”
The Supreme Court discussed the issue as a matter of restriction of Google’s right to expression from the viewpoint of an individual’s right to privacy
In the Decision, the Supreme Court also considered a balancing test in relation to the public’s interest in being aware of criminal records. Furthermore, the Supreme Court analysed the role of search engines in the context of freedom of expression.
Nozaki explained, “The Supreme Court regarded Google as a creator of new expression, which happened to include an index and a URL linking to a third party site. [Therefore,] the Supreme Court discussed the issue as a matter of restriction of Google’s right to expression from the viewpoint of an individual’s right to privacy.”
It remains to be seen how the Decision may affect the interpretation of the Amended Act on Protection of Personal Information 2015 (‘APPI’), set to enter into force on 31 May 2017, which includes various instances of when data can or must be deleted.
Ishii concluded, “I think the effect of the Decision on the APPI will be limited. First, the cause of action of the appellant does not rest on the APPI, but instead on ‘personal rights’ relating to reputation as established by many court decisions. Second, the scope of Article 29(1) of the APPI, which allows for personal information to be deleted, is limited by the fact that personal data retained must not be ‘factual’ in order for it to be removed or corrected.”
Hernán Romero-Dutschmann | Privacy Analyst