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Right to Privacy (Article 13)
Supreme
Court Third Petty Bench Decision of December 15, 1995, 49 Keishu 10-842,
1555 Hanji 47, 900 Hanta 167. The Court dismissed the defendant's appeal,
and affirmed the constitutionality of Alien Registration Law Article 14(1) which, prior to
its revision in 1982, required local authorities to obtain fingerprints from all
foreigners residing in Japan at least twice. In 1981, the defendant, an American, refused
to be fingerprinted and was prosecuted for criminal violations. While recognizing a
"freedom from the forcible taking of fingerprints without reason" under Article
13 of the Constitution and a danger of invasion of an individual's privacy depending on
the use of such information, the Court nonetheless found the statutory purpose of the
former fingerprint registration system reasonable, and its methods appropriate. The Alien
Registration Law was amended again in 1987 to require that foreigners residing in Japan be
fingerprinted only once. By imperial order, the Showa emperor, shortly before his death,
ordered dismissal of all criminal charges stemming from refusal to be fingerprinted more
than once. The present case proceeded nonetheless as it involved a refusal to be
fingerprinted at all.
Tokyo District Court Decision of June 22, 1999,
1691 Hanji 91, 1014 Hanta 280. The Court ruled in favor of a woman seeking (1) a permanent
injunction against the future publication of a novel or its broadcast or redistribution in
any form and (2) 1.3 million yen in damages for invasion of privacy stemming from the fact
that, without permission, the plaintiff had clearly been the model for one of the
characters in the novel. The novel, Ishi No Oyogu Sakana, written by Mi No Yu, an
award-winning author and acquaintance of the plaintiff, had appeared in the September 1994
issue of the magazine Shincho. "Erimi," one of the characters in the
novel, bore a striking resemblance to the plaintiff. Both were South Korean women in their
thirties living in Japan, both graduates of the same university and both with a tumor on
their face. Although the defendants had alleged that even if an invasion of privacy had
occurred, future publication of the novel could not be prohibited without violating
constitutional guarantees of freedom of expression, the Court found that, without
revision, the novel constituted an ongoing invasion of the plaintiffs right to
privacy and could therefore justifiably be prohibited from further publication. It would
not be difficult to imagine that anyone reading the novel who had seen the plaintiff or
who had at some time known the plaintiff, would recognize the plaintiff as
"Erimi" and, despite the fact that some or all of the experiences and
circumstances described in the novel may be fictional, it may be impossible for such
readers to draw a distinction between the fictional experiences of the character
"Erimi" and the actual experiences of the plaintiff, which in turn results in
defamation of the plaintiff and interferes with the plaintiffs right of privacy and
sense of self worth. In essence, the defendants failed to take adequate steps, other than
avoiding use of actual names, in concealing the plaintiff's characteristics or the
relationship and experiences between the plaintiff and the defendant author so that
readers familiar with the plaintiff would nonetheless have the impression that the novel
was a work of fiction. |