The Ministry of Economy, Trade and Industry of Japan (the “METI“) recently revised the Interpretative Guidelines on Electronic Commerce and Information Property Trading (the “Guidelines“), which apply to all online business operations in Japan and clarify how the Civil Code, which governs Japanese commercial contracts, and other relevant laws, such as the Act on Special Provisions to the Civil Code Concerning Electronic Consumer Contracts and Electronic Acceptance Notices (Act No. 95 of 2001) (the “Electronic Contract Act“) and the Act on Specified Commercial Transactions (Act No. 57 of 1976), are applied to various legal issues relating to electronic commerce (e.g. online shopping) and information property trading (e.g. software and other digital contents).
Existing sections of the Guidelines have been amended to provide detailed guidance on certain issues surrounding electronic publications. The following existing sections of the Guidelines have been amended in line with the revised Copyright Act (Act No. 35 of 2014) (the “Copyright Act“) and recent judicial decisions:
- Section II-1: Liability of Business Entities Providing Consumer-generated Media (“CGM“) Service for Mediating Transmission of Illegal Information
- Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website
- Section III-12-3: Obligation to Redistribute Electronic Publications
Section II-1: Liability of Business Entities Providing CGM Service for Mediating Transmission of Illegal Information
According to Articles 709 and 719 of the Civil Code, in cases where a user posts or uploads information that infringes third-party rights, provided that the transmission of such information apparently infringes third-party rights and that it is easy to prevent the transmission of such information (for example, by deleting such information from the website), if the business entity or the website operator providing the CGM services, such as blogging or video-sharing services, fails to remove such information, such business entity or website operator may be held liable for tort to the person whose right is violated by the illegal transmission of such information.
However, according to Article 3(1)(i) and (ii) of the Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (the “Provider Liability Limitation Act“), CGM service providers are only liable for not actively deleting information under certain circumstances, such as situations where the CGM service providers have actual or constructive knowledge that the distribution of the relevant information is an infringement of third-party rights.
In a judgment of Sapporo District Court dated 4 September 2014, the court considered the situation where a user posted defamatory information about a restaurant. The restaurant requested the website operator to delete the defamatory information, but the website operator took an unreasonably long time to delete the defamatory information. The court held that setting up a website for users to contribute word-of-mouth information of restaurants does not infringe the moral rights of the restaurants and is therefore lawful.
Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website
Where a link to a website with copyrighted contents is so configured that a viewer of the linked website and/or copyrighted contents therein may mistake the linked materials for those belonging to the linking website and/or copyrighted contents therein, such link may constitute an infringement of the copyright holder’s moral rights and public transmission rights under the Copyright Act.
In a judgment of Tokyo District Court dated 17 January 2014, where infringement of copyright is contended in relation to the disclosure of identification information under the Provider Liability Limitation Act, it was held that the act of the person who set up the link to an illegally uploaded comic was equivalent to the act of those who performed the uploading of the electronic file of the comic and that the person who set up the link infringed copyrights and public transmission rights.
Section III-12-3: Obligation to Redistribute Electronic Publications
Prior to the revision of the Copyright Act, publishers (e.g. e-book agents) who had publishing rights but were not the copyright holders (e.g. authors) could not directly offer rights for public broadcasting of digital contents or public transmission of electronic publications to third-party distributors. On 1 January 2015, revisions of the Copyright Act have come into force so that electronic publication distributors can obtain licenses granting rights to distribute electronic publications directly from publishers (e.g. e-book agents) empowered by copyright holders (e.g. authors).
Earlier Amendments in Relation to Electronic Commerce
In addition to the 2015 amendments discussed above, please see our previous updates for an overview of the 2014 amendments to the Guidelines.