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Japan: Final Report on Internet Regulation

The idea that a country boasting one of the world's most active net cultures, with possibly the world's largest blogosphere and almost certainly its largest online forum, would attempt to regulate online content within its borders may appear to some not only far-fetched, but infeasible. Plans unveiled (with little fanfare) earlier this year by the Japanese government, however, aim to do exactly this, targeting a broad range of content, including blogs and personal homepages, in fairly vague terms.

In an interim report [ja] on the proposed regulation published in June by a study group under the Japanese Ministry of Internal Affairs and Communications, the broadest of three major types of online communication to be regulated was expressed in the vaguest of these terms. An article posted in June at atmarkIT explains that:


The last [type], open communication (公然通信/kouzentsushin), targets the most extensive range of content. The interim report defines open communication as “communication content having openness [kouzensei/公然性] such as homepages and so on”. With the exception of private messages used only between specific persons, in the form of email and so on, it seems that all online content will be targeted. Bulletin board services such as “2-channel”, as well as personal blogs, are also [considered] open communication.

The interim report also recommended that public opinions be sought on the issue, so back in June and July the ministry opened a space on its webpage for people to submit comments. Later coverage [ja] indicated that the government received a total of 276 responses, 222 from individuals and the remaining 54 from organizations. Whereas organizations such as the Japanese telecommunications operator KDDI and Sky Perfect Communications were were reportedly in favour of legal restructuring but expressed reservations about the regulation of content, the Keidanren, Asahi Television, Fuji television, Japan's public broadcaster NHK, and the Japan Newspaper Publishers & Editors Association were entirely against the plans. Many organizations, including Yahoo Japan, requested clarity about the range of what exactly constitutes “open communication”.

With the publication early this month of a final report [ja] on the proposed regulations, setting down steps to move ahead and submit a bill to the regular diet session in 2010, the topic has finally entered the spotlight. Blogger tokyodo-2005, who covered the issue extensively while it was in the public comments phase, posted an extensive post on the topic of the final report, translated here in its entirety.

In the post, he began by remarking on the achievement of the 222 individuals who submitted comments against the regulation:


An “interim report” of the “study group on the legal system for communications and broadcasting,” in which [it was noted] that regulation of the Internet is led by the government, and that [as such] there is a danger that freedom of expression on the net could be taken away, drew an exceptionally large number of public comments (Note 1). Most of these were against the regulation. As a result, the final report of the same study group about the legislative system integrating communication and broadcasting, summarized on December 6th, included an expression which indicates that the voices opposing [the proposed regulations] may haven been taken into consideration. This may be interpreted [as meaning] that introduction of penal regulations was prevented, which could be seen as a major achievement (applause). As a blog which featured a series [of posts] asking [people to make] public comments, [I was] also somewhat relieved by this. However, once the regulations have been initiated, they will be intensified. And on top of this, regarding “government oversight” — the fatal flaw — there was no motion to recommend establishing an “independent administrative commission”. From here on, let's all continue to raise our voices against [this regulation] being legislated.


First, from the description (below page 21) of the final report (Note 2):

He then quotes directly from page 21 of the final report, translated below:


At the present time within Japan, the transmission of illegal information is regulated in statute laws of the Copyright Law, the Pharmaceutical Affairs Law and so on, and also from the viewpoint of improving the environment of ICT [Internet Communications Technology] usage, service providers limited liability legislation has been enacted regarding information violating the rights of the individual, establishing a limitation of liability and claims rights for service providers with respect to the disclosure of senders’ information. However, compared to other countries, it is hard to say that legislative measures, directed at information that violates societal interests protected by law, is itself enough. There are a great many voices calling for the improvement of discipline, with a basis in law, regarding the implementation of countermeasures taken independently by service providers, and demanding that aid [be provided] promptly to victims.


Nevertheless, there is a danger that the government imposing direct and comprehensive regulation with regard to illegal information would invite the excessive atrophy of speech and expression. As well, there is a strong possibility that [such regulation] would be incompatible with the rich net culture that has blossomed rapidly in our country over recent years against a background of broadband network development, one that takes as its principle [the values of] independence and autonomy. In public comments [about the regulation] and so on, opinions of this kind were received in great numbers.


Taking these collectively into consideration, in the comprehensive telecommunications legislation called the Telecommunications Law [Jouhou Tsushinhou/ 情報通信法], comprehensive and direct state regulation against illegal information should be withheld for the moment, and there should be an investigation, in a form not accompanied by concrete punishment, of the minimum items of consideration demanding essential compliance of all users distributing information by means of information and telecommunication networks. At the same time, there needs to be the development of a framework for accelerating a response, in a form which does not involve direct participation of an administrative body, in order to deal promptly with illegal information — including [information that] violates societal interests protected by law — and to prevent injury and attempt to provide relief to victims. [What is needed is] a response with a legal basis, for example clarification of the legal responsibility of authorized people, or, through the ISP , elimination [of service to a user] or establishment of a rating service. Furthermore, in the future, a detailed study should be performed regarding circumstances in which there is a circulation of illegal information, or in which there is injury. If there is a need, the adequacy of punishment, etc., should also be investigated.

The blogger goes on to quote a passage from the interim report (Note 3), translated here:

【具体的には、「公然通信」に係るコンテンツ流通に関して、各種ガイドラインやモデル約款等が策定・運用されていることを踏まえ、違法・有害コンテンツ流 通に係る最低限の配慮事項として、関係者全般が遵守すべき「共通ルール」の基本部分を規定し、ISPや業界団体による削除やレイティング設定等の対応指針 を作成する際の法的根拠とすべきである。「プロバイダ責任制限法」などICT利用環境整備関係法制度についても、可能な限り一元化すべきである】(10 頁)

In concrete terms, given that various guidelines and model agreements regarding the circulation of contents involved in “open communication” have been laid out and put into effect, as minimal items of consideration regarding the circulation of illegal and harmful content, there should be regulation of the basic part of the “shared rules” with which all persons concerned should comply, which will be a legal foundation for creating policy responses, such as [service] cancellation or establishment of a rating system by an ISP or industry group. Regarding legislation related to improvement of the ICT environment such as “service provider limited liability legislation”, where possible there should be unification (page 10).

The blogger then comments:


The difference between the two seems to be the existence/nonexistence of penal regulations. At the stage of the interim report, this was not clearly specified, and although there had been plans to establish such regulations, it seems that what was specified in the final report was [oriented] in the direction of removing them.


If this is the case, then this seems to be a substantial achievement of the public comments. That there would be accompanying penal regulations means that there would be accompanying compulsory investigations, and in that case, it would be possible, through arresting someone in order to harass them, etc., to suppress current freedoms. However, if there are no penal regulations, then there are no compulsory investigations.


… even so, when I think that, had there not been public comments expressing opposition, the final report would have been framed in terms of moving these penal regulations ahead, it makes me shiver…


Of course, even though they write “in a form which does not involve direct participation of an administrative body” (page 22 of the final report), in Japan, where there is no independent administrative committee on broadcasting, even if formally this is indirect, in substance it is conceivable that there could be direct participation. Because of this, we cannot drop our guard, all the more so as they went as far as to write: “Furthermore, in the future, a detailed study should be performed regarding circumstances in which there is a circulation of illegal information, or in which there is injury. If there is a need, the adequacy of punishment, etc., should also be investigated” (page 22 of the final report).


Furthermore, regarding harmful information (I hesitate to necessarily say illegal information, but information that may possibly give rise to a danger to public safety and order or information perceived as harmful to the rights or welfare of a specific person), in the interim report as well as the final report, it is stated that a zoning ordinance should be adopted.


However, according to the final report (page 23), it says: “In concrete terms, there should be an investigation about ways of offering a filtering [service]. Also, the investigation should include the necessity of institutionalizing an independent organization to provide aid in judging concretely the harmfulness, or lack thereof, of private business.” There is the appearance of danger having been exposed.

つまり、第三者機関を設けて有害性の判断をする方向へ持って行くようだが、その第三者機関は、政府主導のもの となりそうなのだ。なぜなら、同じページに、【具体的な有害性の判断について、ISP等では現実的には個別に判断することが困難だという問題点が指摘され ており、現行の自主的な対応では十分ではなく国の積極的な対応が必要との声もある】と明確に書かれているからだ。

In other words, while there appears to be a move in the direction of establishing an independent institution to judge harmfulness, it also seems that this independent institution will be under the direction of the government. Because on the same page, it is clearly written that: “As has been pointed out, the problematic issue is that, realistically-speaking, it is difficult for ISPs to individually make judgements regarding concrete harmfulness, and there are voices that [argue] that the current voluntary response is not enough, and that there is a need for an active effort from the government.”


That the government is going to get involved in selecting, by means of filtering software, what information should be blocked, this is completely outrageous. This absolutely cannot be allowed.


On top of this, this is not just a problem of individual bloggers; for so-called media outlets as well, there remain problems in the final report. According to Mainichi Shimbun [newspaper] (Note 4): “If the new law is established, when contents distributed on the net by influential media are judged politically biased or harmful, it will become possible to cancel [service] of the distributor (businessperson or individual) or demand corrections.” Certainly, this is the substance of what appears in pages 17-20 of the final report…


A country where the government can indicate to the media to make corrections of “political bias”… doesn't that mean that they are going to give as much freedom as communist countries or dictatorships do?… The explanation of broadcasting begins with the finiteness of radio waves, but from the start, the fact that in Japan the government is engaged in the administration of broadcasting is itself the problem (Note 5).


The decisive problem of the report is that, in the establishment of a legislative system that fuses communication and broadcasting, there is no proposal from the government recommending that the supervisory function be transferred to an “independent administrative committee”. As long as government supervision is permitted, Japan's freedom of expression will be nothing more than that of a communist country or dictatorship.


This point was also mentioned by many of the people who made public comments [about the proposed regulation], but the “study group on a comprehensive legal system for communication/broadcasting” appears to have ignored [the point about the supervisory function].


According to the above-mentioned Mainichi shimbun [newspaper] article, in January of next year, the Ministry of Home Affairs will consult the Information and Communications Council (advisory organ of the Minister of Public Management, Home Affairs, Posts and Telecommunications) regarding review of the system, and once details of a concrete proposal for a new law have been worked out, there is a plan to present it at an ordinary session of the National Diet in 2010.


Until that time, we need to make more citizens understand the necessity of an independent administrative council. Everybody together, let's spread this information!

Notes for the blog entry are listed below:


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