Supreme Court, Second Petty Bench · December 23, 2024 · Reiwa 5 (2023) (Ju) No. 1583 · Judgment: partly quashed with the Court's own decision, partly dismissed

Article 5(2) of the Provider Liability Limitation Act as amended in 2021 applies to login communications made before the amendment took effect; a login communication has the "substantial relevance to the transmission of the infringing information" required by the regulations only, as a rule, if it is the login closest in time to that transmission.

Case seeking disclosure of sender identification information, etc.

Facts

Posts on an account of an image-sharing social network displayed photographs of the plaintiff without consent. The operator of the network kept the IP addresses and times of login communications but not those of the posting communications. The plaintiff sought, from the access provider that had carried eight later logins to the account, the name, address, telephone number and e-mail address of the subscriber for each login. Between posts ① to ④ and those logins there had been two further logins through the same provider, but the provider could not identify the corresponding records. The posts and logins all predated the entry into force of the 2021 amending act on October 1, 2022, while the oral proceedings in the court below closed afterwards. The court below applied Article 4(1) of the pre-amendment Act and ordered disclosure for all eight logins.

Issue

(1) Whether Article 5(2) of the amended Act (disclosure of sender information relating to infringement-related communications) applies where both the posts and the logins predate the amendment. (2) Which login communications have "substantial relevance to the transmission of the infringing information" within the meaning of the main clause of Article 5 of the implementing regulations.

Ruling

(1) Neither the supplementary provisions of the 2021 amending act nor any other law contains a transitional provision excluding the amended Act for infringements that predate it, and the amendment partly reorganized the requirements of the disclosure claim rather than creating a new one. Article 5(2) of the amended Act therefore applies even where the infringing transmission and the related communications predate the amendment. The court below erred in applying Article 4(1) of the pre-amendment Act. (2) Article 5(1) and (2) of the amended Act allow disclosure of sender information for login communications, where the sender cannot be identified from the infringing transmission itself, under requirements that balance the need to remedy the victim against the privacy, freedom of expression and secrecy of communications of the communicating parties. The "substantial relevance" clause in the regulations limits the communications covered by weighing, for each login, the degree of its connection to the infringing transmission against the need for disclosure of its information. Where nothing but temporal proximity indicates that connection, at least the login closest in time to the infringing transmission qualifies, and other logins may qualify only where there are circumstances supporting a need to seek their information as well. Here, login ②, made 21 days after posts ① to ④, was the closest; the two intervening logins could not be identified by the provider, so login ② qualified. Logins ①, ③ to ⑧ were less proximate and nothing supported a need for their disclosure, so they did not qualify, nor did they qualify in relation to post ⑤, whose date was unknown. The Court upheld, in result, the order to disclose the information for login ②, quashed the order as to the other information and dismissed those claims. Unanimous.

Provisions

Provider Liability Limitation Act, Art. 5(1), 5(2), 5(3), 6(1); Regulations for Enforcement of the Act, Arts. 2, 3, 5