Law concerning Limitation of Damages to Specific Telecommunications Service Provider and disclosure of Sender Information.
(Draft from Ministry of Public Management, Home Affairs, Posts and Telecommunications)
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[Unofficial Translation by Toru Maruhashi (Fujitu)]
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Passed on November 22, 2001
Article 1. (Coverage)
This Law provides for, where circulation of information via Specific Telecommunication results in an infringement of rights, a limitation of damages to Specific Telecommunication Service Provider and a right to require disclosure of Sender Information.
Article 2. (Definitions)
In this Law, with respect to the meaning of the terms given in the following items, the definition set forth in each item shall apply:
i) gSpecific Telecommunicationh means transmission of Telecommunication (as defined in Item i) Article 2 of Telecommunications Business Law (Law No. 86 of December 25, 1984)) for the purpose of which is to be received by unspecified persons, provided that the gtransmissionh shall not include the transmission of Telecommunication for the purpose of which is to be directly received by the public.
ii) gSpecific Telecommunication Facilitiesh means Telecommunication Facilities (as defined in Item ii) Article 2 of Telecommunications Business Law) for the use of Specific Telecommunication
iii) gSpecific Telecommunication Service Providerh means a person who intermediates communication of others through the use of Specific Telecommunication Facilities or otherwise provides Specific Telecommunication Facilities for the use of others.
iv) gSenderh means a person who records information on the recording media in Specific Telecommunication Facilities used by Specific Telecommunication Service Provider, provided that such information recorded on the recording media is to be transmitted to unspecified persons, or who put information into transmitting facilities in such Specific Telecommunication Facilities, provided that such information put in such transmitting facilities is to be transmitted to unspecified persons.
Article 3 (Limitation of damages)
(1) When circulation of information via Specific Telecommunication results in infringement of rights of the other person, Specific Telecommunication Service Provider using Specific Telecommunication Facility for the use of such Specific Telecommunication (hereafter defined as gRelated Service Providerh in this paragraph) is not liable for damages unless it can technically apply measures by which transmission of such information resulting in the infringement of rights is prevented and where either of the following items apply, provided that the foregoing shall not apply if such Related Service Provider is Sender of such information resulting in the infringement of rights:
(i) where such Related Service Provider knows that such other personfs rights are infringed by circulation of information via such Specific Telecommunication, or
(ii) where such Related Service Provider knows circulation of information via such Specific Telecommunication and there is an appropriate reason, which is enough to determine that it should have been able to know that such other personfs rights are infringed by the circulation of information via such Specific Telecommunication.
(2) When Specific Telecommunication Service Provider apply measures by which transmission of information using Specific Telecommunication is prevented, it may not be liable for resulting damages incurred by Sender of such information, transmission of which is prevented by such measures, where such measures are applied to the limited extent necessary for the prevention of transmission of such information to unspecified persons, and either of the following items is apply:
(i) There is an appropriate reason, which is enough for such Specific Telecommunication Service Provider to believe that by circulation of information via such Specific Telecommunication the rights of others are unjustly infringed, or
(ii) Where a person who alleges that its rights are infringed by circulation of information via Specific Telecommunication requests the Specific Telecommunication Service Provider to take measures preventing the information so infringed from being transmitted (hereafter defined as gTransmission Preventive Measuresh in this item) and specify such information allegedly infringing such rights (hereafter gInfringing Informationh) the rights claimed to be so infringed (hereafter defined as gInfringing Information etc.h in this item) and such Specific Telecommunication Service Provider inquires such Sender whether or not Sender agrees to Specific Telecommunication Service Provider to take such Transmission Preventive Measures and specify such Infringing Information etc., and Sender does not reply with a disagreement to Specific Telecommunication Service Provider taking such Transmission Preventive Measures within seven days after the day such Sender received the inquiry.
Article 4. (Request for Disclosure of Sender Information etc.)
(1) A person, who alleges that its rights are infringed by circulation of information via Specific Telecommunication, has a right to require Specific Telecommunication Service Provider using Specific Telecommunication Facility for the use of such Specific Telecommunication (hereafter defined as gDisclosure Related Service Providerh) to disclose Sender Information related to such alleged infringement of rights (name, address, or other information useful to specify Sender of Infringing Information to be stipulated in the applicable ministerial ordinance of the Ministry of Public Management, Home Affairs, Posts and Telecommunications) in the possession of such Disclosure Related Service Provider if all of the following items are satisfied:
(i) it is obvious that rights of such person requesting for disclosure of Sender Information are infringed by Infringing Information, and
(ii) such Sender Information is necessary for such person requesting for disclosure of Sender Information to claim damages, or such person has otherwise justifiable reason to require the disclosure of Sender Information.
(2) Disclosure Related Service Provider shall, when it receives a request for disclosure in accordance with preceding paragraph, inquire Sender in question about itfs opinion on whether or not Disclosure Related Service Provider may disclose Sender Information. This obligation is, however, not applicable, where Disclosure Related Service Provider is not able to communicate with such Sender of Infringing Information related to such request for disclosure or otherwise special circumstances exist.
(3) A person who obtains Sender Information in accordance with the paragraph (1), shall not, by improperly using such Sender Information, perform any act unjustifiably harming such Senderfs reputation or piece of life.
(4) Disclosure Related Service Provider is not liable for damages incurred by the person having requested the disclosure as a result that Disclosure Related Service Provider has refused such request for disclosure made in accordance with paragraph (1) unless such refusal is made intentionally or with gross negligence, provided that the foregoing shall not apply if such Disclosure Related Service Provider is Sender of Infringing Information related to such request for disclosure.
Supplementary Provisions
(Date of Enforcement)
This Law shall come into force as of the day stipulated in the applicable cabinet order within six months of the day of promulgation.
Copyright (C) 2002 Takato Natsui, All rights reserved.
Last Modified : Jan/23/2002