Supreme Court, Third Petty Bench · April 13, 2010 · Heisei 21 (2009) (Ju) No. 609 · Judgment: partly quashed with the Court's own decision, partly dismissed

A provider that declined an out-of-court disclosure demand is liable in damages for "gross negligence" under Article 4(4) of the Provider Liability Limitation Act only where it knew that the statutory requirements for disclosure were met, or where they were so plainly met that failing to recognize this was grossly negligent.

Case seeking disclosure of sender identification information, etc.

Facts

In a thread on an internet bulletin board where postings from various standpoints about the plaintiff, the head of a school corporation, and the school's activities had continued, a post containing a single insulting word directed at the plaintiff was made in January 2007. In February 2007 the plaintiff demanded out of court, under Article 4(1) of the Act, that the access provider serving the poster disclose the poster's name, address and e-mail address. After consulting the poster, who did not consent, the provider declined, stating that an infringement of rights was not evident. The plaintiff sued for disclosure and for damages, alleging gross negligence (Article 4(4), main clause) in declining. The court below held that calling an identifiable person by that insulting word infringed the person's sense of honor and could be judged without specialized knowledge, so the infringement was evident from the post itself; it found gross negligence and awarded 150,000 yen.

Issue

When is a disclosure-related service provider that declined an out-of-court disclosure demand liable in damages for "gross negligence" under the main clause of Article 4(4)?

Ruling

Because sender information concerns the sender's privacy, freedom of expression and secrecy of communications and cannot be restored once disclosed, the Act sets strict requirements such as the evidentness of the infringement (Article 4(1)), obliges the provider to consult the sender (Article 4(2)), and has the provider decide whether the requirements are met while taking care that the sender's interests are not unduly harmed. Since it would be inappropriate to impose liability under general tort principles where the provider declined after careful consideration, Article 4(4) limits that liability. A provider is therefore liable only where it knew that the demand met every requirement of Article 4(1), or where it was plainly evident that the requirements were met and the provider's failure to recognize this was grossly negligent. The post here, though it contained an insulting expression, did not allege specific facts lowering the plaintiff's social reputation; it affected only the plaintiff's sense of honor, which is a legally protected interest only where the insult exceeds socially tolerated limits. The insulting wording was a single word, stated as an unsupported opinion, so it was not plainly evident from the wording alone that the limit had been exceeded, and the evidentness could not be judged without considering the other posts and the background. That judgment was not necessarily easy for a provider facing an out-of-court demand, so there was no gross negligence. The Court quashed the award of damages and dismissed the plaintiff's appeal on that part; the appeal concerning the disclosure claim was dismissed because those grounds had been excluded in the decision accepting the appeal. Unanimous.

Provisions

Provider Liability Limitation Act (before the 2021 amendment), Art. 4(1), 4(2), 4(4)