List of Relevant Laws Impacting Free Speech (Japan) (2015-2022)
The Act, also known as the ‘Hate Speech Elimination Act’ was promulgated and came into effect in June 2016 as the first national legislation against hate speech in Japan. The law was introduced in response to the increasing prevalence of hateful demonstrations and campaigns across the country. The Act condemns unfair and discriminatory speech and behaviour that incites the exclusion of individuals who are from countries or regions outside Japan or their descendants who are legally residing in the country, referred to as ‘persons with countries of origin other than Japan.’ (Article 2) It aims to address the issue of hate speech while ensuring that freedom of speech is not unduly impeded. As such, the Act does not impose penalties or outrightly prohibit hate speech. Instead, the Act mandates the government to implement measures to eliminate such discriminatory speech and behaviours effectively. It also encourages citizens to deepen their understanding of such discriminatory speech and behaviours (Articles 3 and 4).
Osaka City Ordinance Dealing with Hate Speech
It is the first anti-hate speech ordinance in Japan, which came into effect in July 2016. Known as the Osaka Hate Speech Ordinance, it offers a broader definition of hate speech compared to the Hate Speech Elimination Act. The ordinance includes expressions disseminated through the internet, extending its scope to address online hate speech. The Osaka Hate Speech Ordinance also introduces more robust enforcement mechanisms than the Hate Speech Elimination Act. When examining an expressive act that targets individuals or groups residing, working, or studying in Osaka City or is conducted within the city, the city mayor, with the input of a board of experts, can determine if it constitutes hate speech. Once identified, the city government is authorized to take specific measures including request to internet intermediaries to remove offensive content and publicly disclosing the identity of the perpetrator. However, it’s important to note that the ordinance does not include sanctions or penalties as punitive measures. Following the course of Osaka City, several local governments have enacted hate speech ordinances.
Tokyo Metropolitan Government Ordinance Seeking the Realization of the Principle of Respect for Human Rights Outlined in the Olympic Charter is the first anti-hate speech ordinance at the prefectural level. The ordinance defines hate speech and includes provisions to restrict the use of public facilities by groups found to have engaged in hate speech activities in the past.[1]
Kawasaki City Ordinance for Non-discrimination and Respect for Human Rights (The Kawasaki Hate Speech Ordinance )
The Kawasaki Hate Speech Ordinance represents a significant milestone as the first anti-hate speech ordinance in Japan that includes a criminal penalty for offenders. Enforced since July 2020, this ordinance aims to combat discriminatory language and actions against individuals with countries of origin other than Japan in public spaces within the city. Under the provisions of the ordinance, a board of experts reviews cases, and based on their assessment, the city can issue advisories to violators, urging them to refrain from engaging in discriminatory speech and behaviours. For repeat offenders, the city has the authority to issue orders, compelling them to desist from such actions. However, to address concerns over freedom of expression, these advisories and orders are limited to a period of six months. In cases where violators fail to comply with the issued orders, the city reserves the right to disclose their names and addresses to the public. Additionally, the city may pursue criminal complaints against these individuals. As a further deterrent, repeat violations can result in fines of up to ¥500,000.
Revision of the Penal Code: raise the statutory penalty for insult
In June 2022, Japan’s Penal Code was revised concerning Article 231, which addresses public insults. The amendment raised the statutory penalty for insults from less than 30 days detention to up-to one year imprisonment, elevating the fine from less than 10,000 yen to up-to 300,000 yen (around $2,200). Additionally, the statute of limitations for insults was extended from one year to three years, allowing a longer window for legal action to be taken against perpetrators. The primary motivation behind this revision was to address the escalating issue of cyberbullying and its detrimental impact on individuals and society.
Revisions to Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Sender (the Provider Liability Limitation Act)
Under the Provider Liability Act, identifying the anonymous sender of an online post required navigating through complex, lengthy and burdensome legal procedures. This involved filing a provisional injunction with the court to obtain the IP address from the operator of the social networking platform companies. Subsequently, another lawsuit had to be filed against the telecommunications company identified from the IP address to demand disclosure of the subscriber’s name, address, and other information. The Act was revised in April 2021 to unify these procedures, shorten the time required and make it easier to identify the perpetrator. Furthermore, it expands the scope of information that can be requested for disclosure. The amendments came into effect in October 2022.
Telecommunications Business Law
The Telecommunications Business Law, a key legislation that regulates the telecommunications industry in the country in Japan, was amended in June 2022. The amendment introduced new regulations for telecommunication service providers to protect users’ information and improve transparency around its handling. The revised law is scheduled to come into force on 16 June 2023. Amendments to the Act on the Protection of Personal Information, which expanded the scope of personal data, also went into effect in April 2022.
Amendment to the Act on Punishment of Organized Crimes and Control of Proceeds of Crime for the introduction of the Crime of Preparation of Acts of Terrorism and Other Organized Crimes/ “Conspiracy Bill”
The Act on Punishment of Organized Crimes and Control of Proceeds of Crime was amended in June 2017 to strengthen measures against organized crimes and deter potential illicit activities. The amendment introduced Article 6-2 which criminalises the plotting and committing of 277 targeted actions, including the procurement of funds or supplies, and the surveying of locations for the preparation of terrorism and other serious organised crimes. An entire group defined as two or more individuals can be charged if at least one member of the group is found to have participated in plotting the crime. The revision was severely criticised as it may weaken civil liberties and could be abused to monitor and target innocent citizens.
[1] Others, such as Kobe city, have enacted measures prohibiting discrimination against foreigners, while Aichi Prefecture has, for its part, broad human rights ordinances.