2. Defendant Doe3 shall pay to plaintiff the sum of four hundred thousand yen plus an interest of 5 per cent from May 27, l997 to the day of payment.
3. All the other claims of plaintiff in her principal action are dismissed.
4. All the claims of defendant Doe3 in his counterclaim are dismissed.
5. As to the total costs of litigation, those incurred by plaintiff shall be divided into five parts, and four parts shall be borne by plaintiff and the rest by the defendants; and those incurred by the defendants shall be borne by them respectively.
6. That part, and that part only, of this judgment which is in favor of plaintiff is provisionally executable.
2. That the defendants shall publish an apology to plaintiff as described in paragraph l on attached sheet l on the commercial network NIFTY-Serve (hereinafter called "NIFTY-Serve") on the terms mentioned in paragraph 2 on the said sheet.
2. That plaintiff shall publish an apology to defendant Doe3 as described in paragraph l on attached sheet 2 on NIFTY-Serve on the terms mentioned in paragraph 2 on the said sheet.
(i) Defendant NIFTY is a corporation doing business in genera type II telecommunications and related information processing services with emphasis on communications between apparatuses such as personal computers, standard computers (hereinafter called "PC communications"), and is the leader of PC communications NIFTY-Serve.
(ii) Plaintiff became a member of NIFTY-Serve (hereinafter simply called "member") in April l989 and has been using "Cookie" as her handle name (name for identifying a member on Nifty-Serve).
(iii) Defendant Doe2 has been the systems operator (SYSOP, also called forum manager, hereinafter called "sysop") of the Modern Thought Forum on NIFTY-Serve (briefly FSHISO, hereinafter called "the instant forum") since about November 1993 (C3, defendant Doe2 in person, but Agreement (C1) is dated October 25). Here a sysop is a person entrusted with the management and administration of a specific forum on NIFTY-Serve by agreement with defendant NIFTY.
(iv) Defendant Doe3 is a member of NIFTY-Serve by the handle name of "timid Doe3" or "Doe3 THE SHOGUN."
2. Outlines of Arguments in the Principal Action
(i) Defendant Doe3 defamed plaintiff by uploading into the electronic conference room set up in the instant forum certain sentences numbered as per the respective "utterance numbers" columns of the attached lists of utterances l--4(Such sentences are listed in the "defamatory parts" columns, corresponding to the utterance numbers, and a whole bunch of sentences bearing one common utterance number will hereinafter be called an "utterance," and those utterances altogether "the instant respective utterances").
(ii) Defendant Doe2 , who had a positive duty to instantly delete the instant respective utterances in the instant forum, neglected the duty, thereby leaving plaintiff defamed by the respective utterances.
(iii) Defendant NIFTY, as leader of NIFTY-Serve, should have directed defendant Doe2 to delete the instant respective utterances, or else should have done so itself. Instead it left plaintiff defamed by those respective utterances. The defendant aggravated her damage as a result of its failure to comply with her request to disclose the real name and address of defendant Doe3.
(iv) On the basis of her allegations under (i) above, plaintiff demands: (1) that the defendants shall each pay her the sum of ten million yen in compensation for her mental suffering, plus arrearage at the rate of 5 per cent per annum as provided in the Civil Code from May 27, 1997 (the day following the day this judgment is rendered) to the day of payment, and (2) that they shall publish an apology on NIFTY-Serve. Here plaintiff's claims against defendant Doe3 and defendant Doe2 are grounded on torts, and her claim against NIFTY-Serve on an employer's vicarious liability (respondeat superior) or breach of duty to be mindful of safety as to (i) and on an employer's vicarious liability as to (ii).
3. Outlines of Arguments in the Counterclaim
Defendant Doe3 alleges inter alia that plaintiff in the instant forum
(i) defamed defendant Doe3 by excluding him by so-called ostracism, and
(ii) infringed defendant Doe3's right of privacy by exposing a trouble in his place of work, and, on grounds of such torts, he demands that plaintiff shall pay him the sum of two million yen in compensation for his mental suffering, plus arrearage at the rate of 5 per cent per annum as provided in the Civil Code from December 20, l994 (the day following the day his counterclaim was served) to the day of payment, and publish an apology on NIFTY-Serve.
(i) Was plaintiff defamed by the instant respective utterances of defendant Doe3? (involving all the defendants)
(ii) The cause of defendant Doe2 's liability (involving defendant Doe2 and defendant NIFTY)
(iii) The cause of defendant NIFTY's liability (involving defendant NIFTY)
2. In the Counterclaim
(i) Was defendant Doe3 defamed by the Scramble case (Pt. 3 I 2 (i) (2) iii)?
(ii) Did plaintiff upload anything violative of defendant Doe3's right of privacy?
(iii) Damages and the need of a public apology.
(i) Defendant Doe3's Liability
(2) Defendant Doe3's Liability
Since defendant Doe3 intentionally or negligently uploaded the instant respective utterances into the electronic conference room in the instant forum, he is liable as a tortfeasor for the damage plaintiff suffered.
ii .A victim to such utterances can take no effective countermeasure.
iii. In the light of the contents of NIFTY-Serve's Membership Code, Forum Management Agreement (Cl) and Forum Management Manual (C2, hereinafter called "Management Manual"), it is an established principle on NIFTY-Serve to delete illegal utterances such as derogatory and defamatory ones.
iv. Since defendant NIFTY is deemed to owe to members a general duty of care including a duty to perpetually keep watch over utterances uploaded into the forum, defendant Doe2 should be deemed to owe the same duty as defendant NIFTY (defendant Doe2 and defendant NIFTY, in discussing whether or not defendant Doe2 owes the duty, confine their consideration to the positive aspect of the duty, but that is not enough). Under all these circumstances, defendant Doe2 was bound in duty to perpetually keep watch lest any other person should be defamed by any utterance uploaded into the electronic conference room of the instant forum, and, in case any such utterance should be uploaded, to suspend in time its wire transmission by deleting it or personally guiding the member who did it, or to dissuade the member in question from continuing to upload defamatory utterances, thereby preventing the occurrence or aggravation of damage.
(2) Defendant Doe2 , who knew the instant respective utterances were defamatory to plaintiff, each time they were uploaded, did not delete them, but instead left them alone, with the natural result that the damage done to plaintiff by the instant respective utterances was aggravated.
(3) Thus defendant Doe2 is liable as a tortfeasor for the damage plaintiff suffered.
ii. According to the Forum Management Agreement (C1) and Management Manual (C2), a sysop is given by defendant NIFTY a fully prescribed fiat to follow in case of sentences defamatory to a third person being uploaded, with respect to reporting to defendant NIFTY, judging whether to delete, and disposing accordingly . A sysop is also bound by instructions defendant NIFTY gives him as a follow-up. Furthermore, under the. Forum Management Agreement, defendant NIFTY can dismiss a sysop, as it actually did once before, when it replaced the sysop in question by another employee. These circumstances show that defendant NIFTY and defendant Doe2 , a sysop, are in relations of substantial direction and supervision that afford a basis for an employer's vicarious liability.
iii .Thus defendant NIFTY as an employer is vicariously liable for the damage plaintiff suffered through defendant Doe2 's tort stated in (ii) above.
2. A duty to disclose the name and address of the wrong-doer to the victim to defamation or the like on NIFTY-Serve.
ii. A Performance Assistant's Intentional or Negligent Nonperformance
of an Obligation.
Seeing that defendant NIFTY has primarily entrusted a sysop with forum management and administration, the duty to be mindful of safety stated in (i) devolves upon on a sysop as defendant NIFTY's performance assistant. Since defendant Doe2 breached the duty as stated in (ii) (2) above, and that this breach should be identified by the rule of good faith with defendant NIFTY's own breach of its duty stated in i-l above, defendant NIFTY is liable to plaintiff for the nonperformance of its obligation.
iii. Defendant NIFTY's Nonperformance of an Obligation
b. With regard to utterances nos. 1-2 on list 1 and utterances nos. 1-5 and 12 on list 2, the person in charge, when he read those utterances of defendant Doe3 in 1994, should have found them defamatory and deleted them at once. Instead he failed to do so, and it was not until May 25, l994 that he struck them from the record of the electronic conference room.
c. With regard to the instant respective utterances except those mentioned in a and b above, defendant NIFTY acted as in b, when it should have lost no time in deleting them at least on being served with plaintiff's complaint.
2. Breach of Duty Stated in i 2 Above
Plaintiff wrote to defendant NIFTY on February 14 and March 10, 1994 to request it to disclose the name and address of defendant Doe3, but it refused. Such an action on the part of defendant NIFTY constitutes a breach of duty stated in i-2 above.
Defendant NIFTY invokes Art. l04 of the Telecommunications Business Act as the reason for its refusal to disclose the name and address of defendant Doe3. But his defense is unfounded, because to disclose the name and address of defendant Doe3, the sender of those communications on the other side, is not an act of violating the "confidentiality of communications" within the meaning of the Act.
3. As a consequence of the breach of duty stated in i 1 and i 2 above, the damage done to plaintiff by the instant respective utterances was aggravated. Thus defendant NIFTY is liable for the damage caused by the nonperformance of its obligation.
(2) In order to reinstate plaintiff victimized by the respective utterances, it is necessary for the defendants to publish an apology on NIFTY-Serve as described on attached sheet l on the terms mentioned on the said sheet (As for defendant NIFTY, the public apology is demanded on sole grounds of an employer's vicarious liability).
(i) Lack of Illegality in the Instant Respective Utterances
(2) Background of the Instant Respective Utterances
ii .The feminism conference room was virtually operated by plaintiff as its guiding spirit in such a manner that there plaintiff and her good friends (hereinafter called "plaintiff et al.") would not lend their ears to any dissenters from their view of "feminism," ultimately excluding them from all conversation. Defendant Doe3 criticized what plaintiff et al. considered "feminism" and the way they operated., only to be fiercely repulsed mainly by those members who were their sympathizers.
iii. On May 7, 1993 defendant was participating in the RT conference of the instant forum, when plaintiff its leader as RT master, with the cooperation of other participants, excluded him from the RT conference by means of the scramble function (the function to confine access to specific members who know the scramble mode and the password. This incident will hereinafter be called "the Scramble case"). Plaintiff also invaded defendant Doe3's privacy by uploading an account of a trouble that involved him about copy money at his former place of work. Furthermore, about that time she uploaded into the instant forum, "The buraku is dreadful."
iv. With regard to the Scramble case, plaintiff was criticized by a large number of members. She attempted to justify herself by stating that there is nothing wrong with her use of the scramble for talking only with congenial friends in the capacity of an ordinary member. However, as she was widely known as RT master, her explanation only exposed her to even sharper criticism, presumably with the result that she beat a retreat from the instant forum. Afterwards about October 1993 plaintiff uploaded into the instant forum, "A chosen (Korean) is dreadful."
v. About the middle of November 1993 a feminist forum (FFEMI) was created within the learn for life forum (FLEARN) as a forum in forum (F in F set up within a forum as a forum in a preparatory stage before promotion to an ordinary forum) with plaintiff as forum manager. The feminist forum was operated in such a way that all utterances were controlled as to contents in advance by local rules, and any utterances critical of plaintiff's idea of "feminism" were deleted without prior consent (Local rules are rules of the instant forum applicable solely to its users as to how to use it, how to make utterances, deletion of utterances, and other matters pertaining to the management and administration of the forum).
ii . to protest to plaintiff about uploading into the instant forum "The buraku is dreadful," and "A chosen is dreadful," and
iii to criticize the ideological aspect of what plaintiff meant by "feminism" or "feminist."
(4) The following circumstances should also be taken into consideration in the instant case:
ii. Even if an utterance that tends to lower some member's social estimation is uploaded, he or she can easily refute it to restore his social estimation. General members who read such an utterance will not jump at the conclusion that it will affect his social estimation. Their very concern being rather refutation and criticism, they will judge the rightness of the utterance, taking the refutation and criticism into account... This is strikingly true of the instant forum which has for its objective getting to grips with problems of modern society or with ideological problems through discussions among members.
iii. Mention must also be added of the fact that the instant respective utterances were uploaded into the instant forum which is typically characterized by such topics as modern society and ideology.
Plaintiff cannot have had any mental suffering, judging from the following facts:
ii At the time of bringing the instant action, she gave a press interview to many mass media and distributed copies of the instant respective utterances (A 6-32).
iii In the June 25, l994 issue of the Ladies' Newspaper she appeared in his real name (with a full-length portrait), the article quoting part of her talk in concrete terms. In view of these facts, she cannot have suffered mental damage.
Such being the case, plaintiff's claims against defendant Doe3 are unfounded.
3. Defendant Doe2 's Arguments
(i) Foreseeability and Duty to Foresee
ii. In the case of tortious defamation, which does damage by lowering a person's social estimation, such damage is hard to foresee, and it is hard to know whether his or her social estimation will fall on networks to such an extent that monetary compensation is a proper remedy.
iii. Furthermore, the only information available to defendant ota about an active participant in the instant forum is the sentence uploaded, the time of uploading, the ID number and the handle name. What makes matters worse, it often happens that one person has many ID's, while one ID is used by many members.
iv . Defendant Doe2 ' participation in the instant forum was limited to a short period interrupted by his absence for study abroad. The instant respective utterances began to appear one month after he returned from his study abroad. As defendant NIFTY's sysop he was so poorly paid that he had work below cost, and as a matter of fact he was basically a volunteer sysop who has a regular occupation outside. In these circumstances, a duty to foresee damage was too heavy to be imposed on a person like defendant ota, and foreseeing was in fact more than he could do.
Despite the difficulty as stated in (1) above, as soon as defendant ota was requested by plaintiff by e-mail to deal with the respective utterances nos. 6--11 on the list of utterances 2 to prevent the probable adverse consequence of those utterances uploaded by defendant Doe3, he held discussions in the management conference room in the instant forum. The conclusion was that the damage foreseeable was neither real nor concrete nor serious.
(3) Unreasonableness of a Duty to Perpetually Keep Watch
If, as plaintiff asserts, a sysop were to be in duty bound to perpetually keep watch, networks like PS communications that rest on the activities of volunteer sysops would be nipped in the bud. Therefore, her assertion does not stand to reason.
(4) Under these circumstances, there can be neither foreseeability of damage nor any duty to foresee for defendant Doe2 in the instant case.
(2) Deletion of Utterances etc.
2. Nor can access to the forum by the member who uploaded such utterances be effectively suspended (by dropping his or her name from the forum), because the member can upload an utterance of the same tenor into another forum, or can even do it in the same forum by getting readmitted with a different ID, and moreover because the forum was open to any non-member at that time (It would be of no avail, either, even if defendant NIFTY dismissed the person from the NIFTY-Serve membership (by ID deletion), for he or she could get a new ID under a false name and address, could easily have another member do it for him or her, or could do it himself on another network).
2. If a sysop intensifies intervention in contents of utterances by keeping watch and deleting, he will be put in the same category as a newspaper or journal editor, with the result that there is a risk of his being held liable in tort in connection with any contents of communications.
2. Deletion of utterances may deprive an alleged victim of evidence necessary for bringing an action.
3. Deletion of utterances may ultimately aggravate the damage through triggering intimidation and other trouble in actual life, or appearance of utterances of the same tenor over and over again in the same forum or others.
Here arguments of defendant NIFTY in 4 (i)(2) below are invoked.
v . Under these circumstances, there can be no preventability of consequence or no duty of prevention by means of deletion of utterances damage in the case of defendant Doe2 .
It may happen that a sysop suspends the transmission of an utterance by putting it in "temporary safekeeping." Temporary safekeeping will not put him out of danger any more than deletion mentioned in (2) above, unless a member temporarily affected by such adverse action is given a guarantee like a security required for a court's provisional disposition, or unless such adverse action is conditioned on a prior consent and a definite procedural guarantee with regard to a final judgment. Here again, therefore, there can be no duty of prevention by temporary safekeeping for defendant Doe2 .
(4) Futility of High-Handed Guidance
There is no reason why a duty to protect plaintiff by guiding members of the instant forumant Doe2 should legally be imposed on plaintiff. Moreover, if defendant Doe2 had resorted to highhanded guidance, defendant Doe3 would in all likelihood have defied him and continued to upload questionable utterances as his past utterances clearly indicate.
(5) Sysop's Countermeasures to Questionable Utterances
In the world of electronic networks devoid of established fundamental
principles, a sysop is supposed to fulfill his duties as forum manager,
meeting the requirements of the laws in force and safeguarding the personality
of the members. All he can rely on is his knowledge of the characteristics
of the forum he manages and of its members, and his experience from which
his techniques derive. From this point of view defendant Doe2 , when he assumed
the post of sysop,
examined the past utterances of the instant forum, and found it in a deplorable state filled with abusive language. He explored for the way a forum on thought should be, and adopted a basic policy for drastically reforming the instant forum by clearing it of all abusive utterances. He tried to carry it out by grasping the members' idiosyncrasies and endeavoring to change their mentality through heaped exchanges of opinions in an open forum, with deletion of utterances as the very last resort. Pedagogist as he was, he thought he could make the most of his professional experience in forum management this way. And indeed his effort toward this end has been steadily rewarded with good results.
(6) The foregoing will show that deletion of utterances or "guidance" of speakers would not have been of any avail in preventing damage as plaintiff claims. In the instant case he could not be blamed for neglecting the duty of preventing damage [even if he had owed it at all].
Here arguments of defendant Doe3 in 2 above are invoked.
(2) Recognition as Torts
Mere recognition of the fact that questionable utterances were uploaded is not sufficient to form the basis for defendant Doe2 's legal liability to plaintiff. Recognition that all the elements of a tort were present is indispensable.
2. The key points of the instant respective utterances are: (a) blame for plaintiff's utterances "The buraku is dreadful" and "A chosen is dreadful," (b) criticism about abortion, (c) criticism about the management of the feminist forum, (d) blame for plaintiff's wrongfully prolonged stay in America, (e) blame for plaintiff's exposure of defendant Doe3's privacy. As to (a), the possibility of plaintiff's making such utterances cannot be conclusively denied in the light of her utterances in the instant forum, As to (b), it can be taken to be criticism offered from a different standpoint upon the position plaintiff declared in the sentences she uploaded As to (c), it can be taken for fair criticism on plaintiff who was in a public position as stated in 1 above. As to (d), if plaintiff's own words in the utterance she uploaded were really as defendant Doe3 claims, there can be nothing wrong with it. As to (e), if it is true, defendant Doe3 has every right to blame her. Judging from her position as stated in 1 above, there is no doubt that it is not defamatory. In the light of all these we could say that the instant respective utterances are all fair comments.
3. Thus defendant Doe2 had no recognition of illegality.
As stated in (i)(1) and (2) above, defendant Doe2 had no recognition that damage would be caused by the instant respective utterances.
Here arguments of defendant NIFTY in 4 (iv) below are invoked.
Such being the case, plaintiff's claims against defendant Doe2 are ungrounded.
4. Defendant NIFTY's Arguments
(i) Defendant Doe2 's Positive Duty Denied (in connection with damages claims based on employer's vicarious liability)
(2) Under the Membership Code (B4 about the time the instant respective utterances were being uploaded), the Forum Management Agreement (C1), and the Management Manual (C2), a sysop such as defendant Doe2 can exercise broad discretion, it is true. But this does not afford a basis for imposing on a sysop a positive duty as stated in (1) above in his relations to defendant NIFTY.
(3) Since the instant forum is one where modern thought is the main theme for debate, an agressively-tinctured utterance is an everyday affair. About November l993 when defendant Doe2 assumed the post of a sysop, the situation was such that more or less questionable utterances to be deleted would have come up to, one third or even one half of all the utterances.. He could not take one side in deciding whether to delete or not. If imprudently he had done so, he would instantly find himself the target of bitter criticism amidst a stormy controversy as he could easily have foreseen. Defendant ota as a sysop, who thought high-handed action such as deletion of utterances would throw the instant forum into worse confusion, adopted it as a policy of forum management to let each debater fight it out till a fundamental and progressive solution is reached. As a result of his forum management, questionable utterances have greatly decreased, a thing that bespeaks the rationality of his policy.
(4) Under the circumstances, defendant NIFTY's sysop defendant Doe2 does not owe the members a positive duty such as plaintiff argues he does.
As the Management Manual (C2) clearly shows, defendant NIFTY gives broad discretion to a sysop like defendant Doe2 and leaves it to him to act on his own judgment with regard to the management of a forum on NIFTY-Serve. (This managerial policy could be characterized as a very rational one, seeing that those forums are highly multifarious each in its own way, that the peculiarity of each forum is best known to the particular sysop in charge of it, and that more than 300 forums are more than defendant NIFTY can manage or administer for itself). For instance, the sysop of each forum makes a point of making its local rules, and determines what types of utterances to delete and how to. From the foregoing it will follow that between defendant NIFTY and defendant Doe2 relations of direction and supervision, a prerequisite for an employer's vicarious liability, are lacking. .
(iii) Defendant NIFTY'S Duty to Plaintiff to Be Mindful of Safety Denied (in connection with damages claims based on nonperformance of an obligation)
Those circumstances on which plaintiff dwells in l (iii) (2) i above do not form a basis for a duty to be mindful of safety as plaintiff claims. Now a Membership Agreement between defendant NIFTY and a member, based on the Membership Code, is designed to obligate the former to give the latter a right to use NIFTY-Serve and the latter to pay the form a service charge in consideration of the right. Even if there are some duties incidental to the Agreement, they may include a duty to see that a member as a user can freely upload and smoothly download information, but it can by no means include a duty to protect interests such as a member's honor that has nothing to do with communications in themselves.
(iv) Propriety of the Actual Handling of Defendant NIFTY and Defendant ota (in connection with claims based on an employer's vicarious liability and nonperformance of an obligation)
In the light of the fact that the instant forum has over 20 electronic conference rooms with a daily total of 45,000 utterances, and that the state of things in it is as stated in (i)(3), neither defendant NIFTY nor defendant Doe2 has at this stage any positive duty to monitor for and exclude questionable utterances, nor is there any possibility of these non-lawyers deleting any utterances without a request of deletion specifying in concrete terms utterances to be deleted. Therefore, neither of them should be held liable at this stage.
(2) The period of initial handling when plaintiff's first complained to defendant NIFTY about possibly defamatory utterances (from December 29, 1993 to January 6, 1994):
ii. Defendant Doe2 , on receiving on January 6, 1994 plaintiff's e-mail (A39) requesting him to do something about specified concrete utterances, lost no time in passing it on to the management committee of the instant forum for discussions on how to deal with those utterances. His action was quite reasonable. At any time preceding the receipt of the said e-mail defendant Doe2 had no positive duty of action, nor could he delete utterances as was stated of the preceding stage mentioned in (1) above.
2. Deletion of utterances is very difficult before they are called into question, in view of the peculiarity of the instant forum where a clash of drastic opinions is an everyday affair;
3. A sysop's one-sided deletion of the utterances was likely to provoke a strong repulsion of other members in view of the instant forum's peculiarity and historical background.
ii. Nor is there any reason why defendant NIFTY should be held liable, because, acting on its reasonable policy of respecting forum autonomy, it had by that time left the handling of the matter to the full discretion of defendant Doe2 .
During this period, plaintiff's rejection of defendant Doe2 's reasonable proposal as stated in (3) above made it impossible to delete the utterances. Such being the case, neither defendant NIFTY nor defendant Doe2 can by no means be expected to delete the utterances, a circumstance that exonerate both of them.
(5) The period of waiting for plaintiff's response to the proposal (from January 21, 1994 to February l4, 1994)
On January 20, 1994 defendant Doe2 during his one hour's talk over the telephone with plaintiff was told to stay deletion of the utterances, so that he acted accordingly pending her response and defendant NIFTY was informed by defendant Doe2 accordingly. There is no reason why either of the defendants should be held liable for having done nothing about defendant Doe3's utterances.
(6) The period in which defendant NIFTY and defendant Doe2 received and responded to plaintiff's written request (A1-1) (from February 15, l994 to March 18, 1994)
On February l5, 1994 defendant NIFTY and defendant Doe2 received from counsel for plaintiff a letter requesting deletion of utterances derogatory to her and disclosure of defendant Doe3's name and address. Defendant Doe2 on receipt of the letter lost no time in having the instant forum's management committee deliberate over how to deal with the matter. And on that day he deleted the specified utterances, an action by no means blameworthy. As stated in (1) above, neither defendant NIFTY nor defendant Doe2 should be held liable for not having deleted utterances then unspecified.
Defendant NIFTY is justified in not having complied with plaintiff's request to disclose the name and address of defendant Doe3. Because defendant Doe3 was undeniably a party to the communications, whereas plaintiff was not a party at least to the communications in question, such disclosure was very likely to constitute a violation of Art. 104 of the Telecommunications Business Act concerning confidentiality of communications. Therefore, defendant NIFTY's refusal was an act done out of unavoidable necessity, and has nothing unlawful in it.
(7) The period in which the instant action was brought and the utterances newly specified were being dealt with (from April 12, 1994 to May 25, 1994)
It was not until the service of plaintiff's complaint that defendant NIFTY and defendant Doe2 learnt her request to delete utterances other than those already deleted (see (6) above). Those newly specified utterances were deleted from the record of the instant forum on May 25, 1994. Indeed there is a time lag between the service of the complaint and the deletion of the utterances. But it is no matter to be called into question, for it can be accounted for by the fact that it takes some time to arrive at a determination as to how to defend themselves against plaintiff's claims.. Therefore, neither defendant should be held liable for it.
Such being the case, plaintiff's claims against defendant NIFTY based on an employer's vicarious liability and on nonperformance of an obligation are unfounded.
The Scramble case (I 2 (i) (2) iii above) for which plaintiff is responsible may be characterized as , so to speak, ostracizing defendant Doe3 from the RT conference, an act that tends to lower him in public estimation.
(ii) Invasion of Privacy
About the middle of May 1993 plaintiff uploaded into the instant forum's RT conference an account of a trouble defendant Doe3 had about copy money at his former place of work. The contents of her utterance (1) concerned a fact of defendant Doe3's private life, (2) were by the standard of an average person's sensitivity what a man in the position of defendant Doe3 would not have liked publicized, and (3) were evidently about a fact unknown to the general public. Plaintiff's utterance is an invasion of defendant Doe3's privacy.
(iii) Damages and the Need of a Public Apology
The damage defendant Doe3 has sustained by plaintiff's conduct described in (i) and (ii) above can only be recovered by monetary compensation and a public apology. The damage may be estimated in monetary terms at no less than two million yen. And a public apology as per attached sheet 2 should be advertised on the conditions stated on the said sheet.
2. Plaintiff's Arguments
(i) Plaintiff admits that on May 7, 1993 she used the scramble mode at the RT conference of the instant forum, but denies and disputes the rest. Since defendant Doe3 was indulging in language abusive to other people at the instant forum, plaintiff had no choice but to use the scramble mode.
(ii) Plaintiff denies his allegations in II l (ii) and (iii) above.
(i) PC communications NIFTY-Serve in which defendant NIFTY is doing business is a means of communications that, by connecting personal computers, word processors, and others (hereinafter called "PC etc.") with the host computer of the leader company via telephone circuits, makes it possible for members of a network to exchange information among themselves or to download information stored in the host computer (B19).
(ii) Legal Relations between a Member and Defendant NIFTY
ii Utterances uploaded into the forum, the bulletin board or the like, if found actually or potentially abusive to other members or outsiders, are subject to deletion without prior notice,
iii The membership of any person who has violated the Membership Code or has been found unfit for membership by defendant NIFTY is subject to suspension or deprivation by defendant NIFTY without prior notice.
(3) In the light of (1) and (2) above, it may be said that under the Membership Code defendant NIFTY and a member have entered into an agreement (hereinafter called a Membership Agreement) under which defendant NIFTY has granted to the member a right to use a network of PC communications called NIFTY-Serve, and the member has agreed to pay a certain service charge to defendant NIFTY in consideration of the said right.
It lies in the discretion of the sysop of each forum to determine whom to admit and on what conditions (a regular member so admitted will hereinafter called a "forum member"). Generally the use of a forum by a non-forum member is subject to certain limitations. At the time the instant respective utterances were uploaded, the instant forum was open to non-forum members for uploading and downloading utterances (C3, defendant John Doe2 in person).
(2) Transmitting (uploading) an utterance to a specific electronic conference room is done by a member qualified to do so from his personal computer etc. via a telephone circuit to the host computer etc. under the control of defendant NIFTY (hereinafter called "host computer etc.") The host computer etc. will then record and store the transmitted utterance in a specific place in it (an electronic conference room). On the other hand, reading out (downloading) an utterance so recorded and stored is done by a member qualified to do so by accessing the host computer etc. via a telephone circuit and getting a wire transmission of the utterance specified by him to his personal computer etc.
On NIFTY-Serve, defendant NIFTY or a sysop can delete an utterance uploaded into an electronic conference room or transfer it to another electronic conference room The member himself who uploaded an utterance can delete it until another member add a comment to it. When an utterance is deleted, a member can no longer get a wire transmission of it from the host computer etc.
Defendant NIFTY and an individual sysop have a basic agreement between them (called a Forum Management Agreement) under which defendant NIFTY entrusts the sysop with the management and administration of a specific forum, and the sysop is to receive from the defendant as compensation a certain percentage of the charge for access to the forum and a royalty determined by defendant NIFTY. Under this Agreement a sysop manages his forum.
As a general rule, a sysop is not an employee of defendant NIFTY, and is a person well versed in the theme of a forum. In most cases, he is working not on a full-time basis, but as a spare-time side business (A103, C3, witness Hideyo Koizumi, witness John Doe2 in person). It may be added that A119 and A135 which reflect the state of things much later than the instant case, and A13 which is a magazine article on incipient full-time sysops, do not conflict with the above finding).
A sysop is authorized to choose a sub-systems-operator (hereinafter called subsys) as his management cooperator (management staff) to be assisted in the management and administration of his forum.
Under the Forum Management Agreement, defendant NIFTY delivers to a sysop a copy of "the Forum Management Manual" which fully sets forth the power and liability of a sysop and how to plan and build up a forum and how to deal with troubles involving his forum. Chapter 7 of this Manual has in it a paragraph entitled "Legal Problems Pertaining to the Deletion of Information" which gives a general account of freedom of expression and legal limitations with reference to libel and slander, obscene literature, and extravagant advertisement, It also explains that "freedom of expression" is basically a problem of a citizen vis-a-vis the state, which should be distinguished from a problem of relations between citizens or between private persons, and goes on to quote Art. 14 of NIFTY-Serve's Membership Code enumerating cases where utterances may be deleted without notice: "Out of those utterances which appear
ii. evidently motivated by doing business or making profit,
iii. disregarding the flow of discussions, to the annoyance of the rest of participants. It adds, "A sysop in his judgment may delete those utterances which evidently fall under the first two categories. But he should not fail to inform with reason via e-mail the member whose utterances he has deleted. If the sysop informs NIFTY about how it happened and how it has been dealt with, NIFTY will follow up in the event of a dispute with the speaker (member who uploaded the deleted utterances)." (C2).
2. Background of the Instant Respective Utterances
( i ) Plaintiff was making a living as a free-lance translator about April 1989 when she joined NIFTY-Serve with the idea of using PC communications to sell the products of her translation and to form a circle of translators. About September l990 when she learnt that a "feminism conference room "has been created in the instant forum, she joined it. For a long period of time till the spring of 1994 she continued actively, though intermittently, to upload utterances into the instant forum's feminism conference room in particular. In December l993 the then sysop Jun Sakamoto appointed her the standing master of the real time conference room (RT) with the privileges of service charge exemption (FF) and admission to the management conference room inaccessible to ordinary members. (A114).
(ii) Defendant Doe3 is a resident of Shimonoseki City, Yamaguchi Prefecture, and is teaching English as a part-time instructor in local and Kansai private universities. As his wife happened to be a NIFTY-Serve member, he used her ID to participate in a forum and in April 1993 he joined the instant forum. While reading past utterances of the instant forum's feminism conference room, he was badly offended by the utterances of plaintiff, a member by the name of Cookie. On May 5, l993 he began to make a mock of feminism in the feminism conference room (A 75, 76, 77). Plaintiff was revolted by the utterances of defendant Doe3 (A114).
(iii) On May 7 defendant Doe3 was participating in the regular RT conference, where on about ten other members were present. Plaintiff called on all of those others to move and discuss elsewhere by means of the scramble function and practically excluded defendant Doe3 from the conference room. He was enraged, and this affair was criticized by other general members (C3, D7, the Scramble case).
(iv) About May 10 the then sysop Jun Sakamoto in an effort to cope with the situation asked defendant Doe3 some personal questions by e-mail. In his e-mail answer defendant Doe3 said that he was once on the editorial staff of the Newsweek. She passed the answer on to plaintiff with a note "Strictly confidential" (C19). On May 13 plaintiff on the basis of that answer she made inquiries for more personal information about defendant Doe3. For instance, she inquired of the present editor in chief of the Japanese version of the Newsweek about him. On May l3 Sakamoto talked with him over the phone and learnt that defendant was a Korean by nationality and by the real name of John Doe3... She transmitted the information to plaintiff (C25).
(v) On May 21 at the regular feminism conference plaintiff asked defendant Doe3, "Well, have you ever worked for the Newsweek ? I mean the Japanese version." (A80). Although the question was preceded by an introductory remark that it once happened to come to her knowledge, defendant Doe3 instantly sensed that what he told sysop Sakamoto had been revealed. That deepened his distrust of plaintiff. On My 25 defendant Doe3 uploaded into the forum an utterance charging sysop with the conduct of divulging to plaintiff information touching his privacy (C3).
(vi) On November 17, 1993 plaintiff decided to withdraw from the instant forum and to set up a "feminist forum" within in another forum called "learn for life forum" as a forum in forum with her old circle of friends, and published an advertise to that effect in the instant forum. (A114, C3).
3. The Instant Respective Utterances by Defendant Doe3
(i) In these circumstances plaintiff got rather out of touch with the instant forum, while defendant Doe3 continued to upload utterances during the period from November 29, 1993 to March 27, 1994. Those utterances uploaded at the dates enumerated in the accompanying utterance lists l--4 contained messages including sentences like those reproduced in the "defamatory parts" columns corresponding to the respective dates (For utterance numbers corresponding to individual utterances, see "utterance numbers" columns of the respective. lists). Those on list l, list 2, list 3, and list 4 were uploaded into the sixth, seventh, eighth and tenth conference room respectively.
(ii) Furthermore, from the evening of December 19, 1993 till the early morning of December 20, defendant Doe3 uploaded into the feminist forum under the handle name of "Mother Fucker" eleven utterances personally abusive to plaintiff like the one no. 8 on list 2: "The case of Cookie is simple. She is not weak, she just feigns so. For she is crooked by nature. I bet she will get divorced if she goes her own way." (A92-102) But the sysop of the learn for life forum deleted the utterances, and took a measure to make it impossible for defendant Doe3 to access the feminist forum. As a result he continued to upload all utterances into the instant forum where he was still free to do so (D7).
4. The Instant Respective Utterances and Background of the Instant Litigation
(i) Defendant Doe2 was requested by Jun Sakamoto, the former sysop of the instant forum, to accept the post as her successor and began to be engaged in its management as a subsys about October l993 (C3, defendant John Doe2 in person), and became the sysop of the instant forum about November l993 (Cl, 3).
(ii) About that time the instant forum had a series of cases where old active members are frightened into silence by frequent grossly abusive utterances. He felt the situation needed a drastic remedy, and began by examining all the past utterances uploaded into the instant forum's electronic conference room. As a result, especially since May l5,1993 the sysop and others deleted many questionable utterances into the instant forum with little success, for deletion did not discourage repeaters. He also realized that the forum members were distrustful of the former management staff. Defendant Doe2 arrived at the conclusion that as an effective means of remedying such a situation deletion of utterances should be the last choice, and that exhaustive arguments of thrust and parry type was the thing needed, for that alone would change the mentality of participants and enhance the quality of utterances. He adopted it as his policy for forum management (C3, defendant John Doe2 in person).
(iii) Soon the instant respective utterances of defendant Doe3 started as stated in 3 above.
Out of those utterances
ii. No. 8 on list 2 drew comment from some members four days after uploading or on December 22, l993 in these words: "Do you in this forum interpret the freedom of speech as including the act of indulging in personalities full of private grudges against an individual? Is it a lawless zone beyond the reach of NIFTY's Code?" "Please explain the intention of the forum-managing staff who just leaving these utterances on record without doing anything about them." (A73).
(v) On December 28,1993 defendant Doe2 also uploaded into the seventh conference room his answer to those members who commented as in (iii) ii, declaring his position that although personally he considered defendant Doe3's utterances contrary to Art.. 14 of the Membership Code, he would let them alone, because he believed that the matter should be solved by debate (A50, 5l).
(vi) On December, 1993 plaintiff sent an e-mail to the window of defendant NIFTY's center and its Director Nakamura, requesting that attention should be given to utterances (unspecified) abusive to her reportedly then uploaded into the sixth and seventh conference rooms (A35, 36).
(vii) On January 4, l994 defendant NIFTY's clerk in charge Hideyo Koizumi (hereinafter called "Koizumi") answered plaintiff by e-mail that she should get in direct touch with the speaker or first consult the sysop because he is in full charge of the management of the forum (A38). She notified defendant Doe2 of what came about and asked him to take care of it (B6).
(viii) On January 6, 1994 plaintiff sent an e-mail to defendant Doe2 and Koizumi, specifying nos. 6=11 on list 2 as utterances abusive to her and requesting them to deal with them (A39). On receipt of it, defendant ota referred those utterances to the management committee of the instant forum for discussions on how to deal with them (C3, defendant John ota in person).
(ix) On January 9, 1994 defendant Doe2 , on the basis of the discussions of the instant forum's management committee, sent by e-mail a proposal for solution that follows:
(2) If in the judgment of defendant NIFTY those utterances so condemned in (1) are unlawful and deserve deletion, they will be deleted.
(3) At the time of deletion a note of explanation will be added: 'This utterance is deleted because it has been found unlawful upon a close examination of the management committee and defendant NIFTY conducted at the request of plaintiff.'." (A44).
(x) On January 16, 1994 plaintiff sent an e-mail to defendant Doe2 and Koizumi, requesting them to abstain temporarily from deleting the abusive utterances, with her name (including her handle name) disclosed, because the speaker knew her place of employment and from the contents of the utterances she felt threatened (A47). In reply to it, defendant Doe2 asked her by e-mail to call him on the telephone to make sure of her real intention as to whether she did not want deletion at all, or she did want it, only she did not like her name disclosed. (A48).
(xi) On January 20, 1994 plaintiff and defendant Doe2 talked over the telephone about one hour about how to deal with the instant respective utterances (A114, C3, plaintiff in person, defendant John Doe2 in person). Finally he agreed not to expressly note that the deletion was requested by plaintiff, but at the same time made it clear that he cannot promise to deny the fact when questioned about it by some member. She answered that she was going to consult some one she trusted, and wanted him to withhold deletion till she could arrive at some conclusion (B10, C3, defendant John ota in person, gist of the whole testimony).
(xii) Afterwards she did not contact defendant NIFTY or defendant Doe2 . Neither defendant NIFTY nor defendant Doe2 did anything particular about the utterances specified by plaintiff in (viii) above. On February l5, 1994 they received from counsel for plaintiff a letter demanding the deletion of utterances defamatory to plaintiff and the disclosure of defendant Doe3's name and address among others (A1 i & ii). In compliance with the request, defendant Doe2 took a measure on the same day to delete from the seventh conference room of the instant forum the utterances specified in that letter (nos. 6-11 on list 2)(B19, C3, witness Hideyo Koizumi, defendant John ota in person).
(xiii) On March 11, 1994 counsel for plaintiff requested of defendant NIFTY in writing, among others, disclosure of the name and address of defendant Doe3 (A2). On March 17 defendant NIFTY warned defendant Doe3 by e-mail that if he did not stop uploading abusive utterances, he might be dismissed from membership (B17), and on March 18 it replied to the letter of counsel for plaintiff mentioned in (xii), refusing to disclose the name and address of defendant Doe3 on the ground that there was a high possibility of violating Art. 104 of the Telecommunications Business Act..
5. Plaintiff brought this action in the Tokyo District Court on April 21, 1994, and served defendant Doe2 and defendant NIFTY with a duplicate of the complaint on April 30 and on May 2 respectively (obvious fact on record). Both defendants and their respective counsel met to discuss how to deal with the utterances specified by plaintiff in her complaint (the instant respective utterances except those already deleted as stated in 4 (xii)), and on May 25, 1994 (the date of the first hearing) defendant ota withdrew those utterances from the record of the electronic conference room of the instant forum, and to store them in a floppy (B19, C3, defendant John Doe2 in person).
(i) It is not disputed between the parties that defendant Doe3 uploaded the instant respective utterances into the electronic conference room, and it is evident from their contents that all of them are directed at plaintiff. Couched in violent, overly jeering and repetitively insulting language, those utterances are marked by personalities against plaintiff, and are nothing short of statements in derogation of her reputation in society.
(ii) Defendant Doe3 claims that the instant respective utterances are fair comments on a person like plaintiff who is in a public position as a co-operator in managing the instant forum, or are intended as ideological criticism on "feminism," "feminist." But those utterances are undeniably personal attacks. We cannot escape concluding that the instant respective utterances are beyond the permissible bounds of fair comments or ideological criticism, even admitting as true his asserted intention or purpose in those utterances.
(iii) Defendant Doe3 also claim that because plaintiff uploaded "The buraku is dreadful," "a chosen is dreadful," he simply made a protest or a rebuttal against such utterances.. But there is no sufficient evidence to support the finding that she did it.
(iv) Additionally, both defendants Doe3 and Doe2 argue that it is doubtful that plaintiff fell in public estimation on NIFTY-Serve where anonymity is ensured.
Seeing, however, that, as stated in l (iii) (1) above, utterances uploaded into the electronic conference room can be read by a large number of members, they are open and public. (1) Defendant Doe3 again and again in his utterances identified "Cookie" as plaintiff by calling her by her real name, i. e. her most powerful identifier. (2) In the September l993 issue of ONLINE TODAY JAPAN, an information journal for members issued by defendant NIFTY-Serve, Cookie was identified as plaintiff by calling her by her real name (D7, plaintiff in person). (3) Plaintiff's profession and books she translated were kept open to the public (C3, D7, plaintiff in person). In view of these facts we may say that about the time the instant respective utterances were being uploaded, many members could tell that Cookie was her handle name, so that her anonymity was not preserved. Thus the instant respective utterances may be said to have lowered her in public estimation. Both defendants' argument that denies it is untenable. Nor is their argument, either, that the instant respective utterances do not constitute a tort of defamation.
(v) Therefore, we conclude that the conduct of defendant Doe3 who uploaded the instant respective utterances into the electronic conference room of the instant forum constitutes a tort against plaintiff.
2. Issue 1 (ii) (cause of defendant Doe2 's liability)
(i) Plaintiff maintains that defendant Doe2 's tort is one of nonfeasance. The elements of such a tort are (1) a legal duty of feasance, or to do something necessary to prevent a consequence, (2) intentional or negligent failure to do it, (3) resultant occurrence of damage (Decision of Supreme Court l985 case no. (o)322, 1st Petty Bench, January 22, l987, Civ. Rep., vol. 17, no. 1, p.17).
(ii) Now we will proceed to consider whether defendant Doe2 owes the duty of feasance mentioned in (i) above as a matter of naturalis ratio.
ii. A sysop in such a case is in a position to take a measure to prevent the utterance from being transmitted through wire by deleting it or otherwise so that no other member can read it.
iii. On the other hand, the victim to the defamatory utterance has no practicable means whatever of preventing it from being read by many members.
iv. For the management of a forum a sysop can rely on the Membership Code, (B4 applicable at the time the instant case was brought) and the Management Manual (C2). The former has a provision for possible deletion of an actually or potentially defamatory utterance uploaded, and the latter also mentions how to deal with such an utterance uploaded.
In the light of these facts, we do not consider it proper to exonerate a sysop who did nothing about a defamatory utterance uploaded into his forum from all liability to the person at whom the utterance was directed. We believe there are situations in which a sysop owes a legal duty of feasance as a matter of naturalis ratio mentioned in (i) above.
In this regard defendant Doe2 and defendant NIFTY contend that no sysop owes such a .legal duty of feasance, At the time this case was brought, it is true there were over three hundred forums on NIFTY-Serve, each with distinctive characteristics that derive from themes and classes of members (B19, C3, witnesses Hideyo Koizumi and John Doe2 in person). A smooth management of all those forums each with characteristics all its own needs different attention, and a sysop is presumed to be the person most familiarized with such characteristics. In the light of these facts and the contents of the Membership Code (C1) and the Management Manual (C2), the management of a forum is deemed to be basically left to a sysop's reasonable exercise of discretion, and such discretion should be exercised as a matter of course within the bounds of the private law system. There is no basis for total negation of a sysop's naturalis ratio duty of feasance. Both defendants also argue otherwise to negate a sysop's legal duty of feasance, but that argument is untenable in the light of the facts stated in i -- iv above.
ii. About the time the instant respective utterances were uploaded, many sysops including defendant Doe2 were not working on NIFTY-Serve on a full-time basis, but as a side job for free hours.
iii. A sysop is in entire charge of the management of a forum. Besides, an enormous number of utterances are uploaded into one whole forum each day. This makes it next to impossible in normal circumstances for him to check the contents of every utterance uploaded into the forum under his charge, and to make an exhaustive examination of questionable points (incidentally, as stated above, a sysop can appoint a management co-operator, but, in view of the state of things as stated in ii above, it would entail unreasonable hardships to require all sysops to secure sufficient personnel all the time to check all incoming utterances). In the light of these facts, it would be unreasonable to impose on a sysop such a heavy duty of feasance as a matter of naturalis ratio as to monitor all the time the contents of utterances uploaded into his forum in active search of questionable ones or to examine questionable points of all such utterances.
(4) Under these circumstances, we hold that at least in cases where a sysop became aware of defamatory utterances in concrete terms uploaded into the forum he manages, he has a duty of feasance as a matter of naturalis ratio to take necessary action befitting to his position and authority to prevent the injustice of defamation.
ii. With specific reference to no. 8 on list 2, a member called it into question on December 22, l993, four days after its uploading, condemning it as a defamatory and threatening utterance and blaming the instant forum for failure to do anything about it.
iii Defendant Doe2 uploaded an utterance directed at defendant Doe3 into the instant forum's 7th conference room about nos. 3 and 8 on list 2 on the day of uploading and about no. 1 on list 1 and nos. 5 and 11 on list 2 on the following day, pointing out controversial points in those utterances. On December 24, 1993, he responded to the protesting member (mentioned in ii above) by explaining that the utterance in question was in a sense a protest against plaintiff's past conduct, and was not fit to be treated in isolation.
We also stated our finding in I 5 above that plaintiff sent an e-mail to defendant Doe2 on January 6, l994 requesting him to take proper action about what she believed to be defamatory utterances, specifying them by nos. 6 to 11 on list 2, and that she brought this action on April 21, 1994, her complaint being served on defendant Doe2 on April 30.
ii with regard to Nos. 6, 7 and 10 on list 2, on January 6, 1994;
iii. with regard to other utterances than those referred to in i and i above, by April 30, 1996, the day the duplicate complaint of the instant case was served.
ii. So we now take up the propriety of his action. True there was intraforum criticism, but the utterances defamatory to plaintiff will be none the less unlawful. The instant forum is indeed characterized by free argument, but no counter argument is a cure for their wrongfulness. Since plaintiff was not supposed to delete defendant Doe3's utterances herself because of her duty as a sysop and because of the nature of the PC communications system, defendant Doe2 should have deleted them or taken some positive action towards that end. In fact, however, he took no such action until he was so required by an e-mail or a complaint from plaintiff as stated in i above. He simply warned defendant Doe3 in the forum and did nothing for more than one month before he took action as stated in (2) below. Defendant Doe2 may be accused of failure to perform his duty to take necessary action as stated in (ii) (4) above.
Defendant Doe2 also claims futility of deletion on the ground that such utterances can be repetitively uploaded, and that ID cancellation as a countermeasure can be defeated by acquiring another ID. We find this claim unfounded, because the deletion of the questionable utterances alone can remove the disgrace attached to the victim's good name.
(2) As to the measure taken about utterances nos. 6, 7 and 10 on list 2:
2. On January 9, l994 he suggested to plaintiff that at the time of deletion a note of explanation be added: "This utterance is deleted because it has been found unlawful upon a close examination conducted with defendant NIFTY at the request of plaintiff."
3. After her rejection of this suggestion, defendant Doe2 approached her, and on January 20, 1994 he talked with her over the telephone.
iii. At the time of the I 4 (x) talk, plaintiff answered defendant ota that "she was going to consult some one she trusted, and wanted him to withhold deletion till she could arrive at some conclusion "(I 4 (x)). Then he could not be expected to make any positive move about those utterances until he was approached again. On receipt of a written request for deletion from her counsel, he lost no time in deleting the utterances. Here again we can give him credit for having taken necessary action.
In this connection, plaintiff claims that she had no choice but to ask defendant Doe2 to withhold deletion because he refused to definitely promise not to disclose the fact that she requested it. In view of a sysop's position as stated in (ii) (3) above, however, we see no reason why plaintiff should blame him for having behaved as stated in I4 (x).
It was not until April 30, 1994 that these utterances in concrete terms were brought to the knowledge of defendant Doe2 , and since then he has acted as stated in I 5 above. Without question he acted property by deleting the utterances from the record of the electronic conference room of the instant forum. At that point of time he was sued and was made "defendant," and as such he had to meet with defendant NIFTY and counsel of all the parties to make meticulous arrangements and to determine concrete measures to be taken. Here again we see no reason why plaintiff should blame defendant ota for the time lag between the service of her complaint and the final deletion of those utterances from the record of the electronic conference room of the instant forum. As to these utterances, too, credit is due to him for having taken necessary action as stated in (ii) (4) above.
From the foregoing we may conclude that defendant Doe2 has breached his duty of feasance with regard to utterances no. l on list l and nos. 3, 5, 8, 9 and 11 on list 2. A breach of a duty of feasance entails an inference of negligence as a matter of fact at least. In the whole evidence of the instant case there is nothing that bars the inference. Thus defendant Doe2 is guilty of a tort.
3. Issue 1 (iii) (1) (cause of defendant NIFTY's liability; an employer's vicarious liability)
(i) In the Forum Management Agreement (C1) between defendant NIFTY and defendant Doe2 a sysop, it is provided that
(1) 1. A sysop shall abide by rules, manuals, etc. to be separately prescribed by defendant NIFTY and also its instructions (Art. l, Para. 2),
(2) defendant NIFTY may dismiss a management co-operator appointed by a sysop, if it finds him unfit for the job (Art. 5). This amply indicates relations of substantial direction and supervision between defendant NIFTY and its sysop defendant Doe2 , which form a basis for an employer's vicarious liability.
(iii) With regard to Issue 1 (iii) (2) (cause of defendant NIFTY's liability, nonperformance of an obligation to be mindful of safety), In the light of the purport of the Membership Agreement (I 1 (ii) (3) above), defendant NIFTY no doubt has no obligation to be mindful of safety as plaintiff asserts. Her claim against the defendant for damages arising from its nonperformance of the alleged obligation to be mindful of safety is unfounded.
4. Issue 1 (iv) (damages and the need of a public apology)
(i) In the light of all the circumstances surrounding this case, including the contents of the instant respective utterances, the period during which they were uploaded into the instant forum, the period during which they could be read by other members, the membership of the instant forum (about 6000 at the time defendant Doe2 became its sysop), scarcity of accesses about the time the instant case was brought (defendant Doe2 in person), we assess proper compensation for her mental affliction at 500,000 yen (we cannot possibly agree with defendant Doe3 denying her mental damage), but we do not see any need of a public apology for plaintiff's recovery of damage.
(ii) In addition to the foregoing circumstances ((i) above), we have to take into account the fact that defendant Doe2 did not himself uploaded any utterance defamatory to plaintiff, and that he was found neglectful of his duty of feasance only with regard to a portion of the instant respective utterances. We hold then that out of the said amount, 100,000 yen is the proper amount defendant Doe2 and defendant NIFTY should pay.
(iii) It may be added that since the total amount of the liability of defendant Doe2 and of defendant NIFTY ((ii) above) and the amount of l00,000 yen out of defendant Doe3's liability ((i) above) cover the same damage plaintiff suffered, these two stand in the relation of an unreal joint and several liability.
Such being the case, plaintiffs claim in her principal action is sustainable to the extent that she holds the respective defendants liable for l00,000 yen and defendant Doe3 liable for 400,000 yen.
(i) We found in I 2 (iii) above that when defendant Doe3 was a participant in the real time conference room, plaintiff practically excluded him by means of the scramble function.
(ii) So-called ostracism by continuously keeping a specific person out of a group or a community will exert a seriously adverse influence on the social life of the person so excluded. In the Scramble case in question, plaintiff made one temporary breakaway from the RT conference room by means of the scramble function which NIFTY-Serve places at the disposal of its members (plaintiff in person, the gist of all arguments). Aside from the impropriety of the action she took as a member of standing RT staff, it was not such as to exert a seriously adverse influence on the social life of defendant Doe3. We cannot deem it unlawful enough to be legally equivalent to so-called ostracism.
2. Issue 2 (ii) (Did plaintiff upload any utterance violative of defendant Doe3's privacy?)
(i) In this connection, the record of the RT conference room shows that plaintiff asked defendant Doe3 if he ever worked for the Newsweek, and that he answered her in the affirmative. We cannot find in the record plaintiff's utterance such as "Defendant Doe3 made trouble at his place of work." We do not recognize any invasion of defendant Doe3's privacy beyond the mere fact that she asked him, "Well, have you ever worked for the Newsweek?"
It may be added that in D2-2 it is recorded that Toru Sudo, TS by handle name, made reference to plaintiff's talk about the trouble making of defendant Doe3 about the middle of May in the RT conference room of the instant forum's conference room where plaintiff and defendant Doe3 were participating.. But his memory being unclear in part, we cannot bring ourselves to place full confidence in his recorded statement. Absent corroborating objective evidence, we cannot uphold this testimony.
(ii) Thus defendant Doe3's argument on this point is untenable, too.
3. We need not take up issue 2 (iii) to hold defendant Doe3's counterclaim unsustainable.
*Attorney at law, Professor Emeritus, Kobe University