Action allegedly violates privacy of communication, not stipulated in contract

A Saitama prefecture lawyer filed a case against a unit of Nippon Telegraph and Telephone Corporation ( NTT ) at the Tokyo District Court on Thursday after NTT began blocking three websites with pirated content on Monday.

Plaintiff Yūichi Nakazawa claimed in the case that NTT 's action is allegedly a violation of the Telecommunications Business Act, and constitutes a violation of privacy of communication, due to the action implying that NTT is aware of the content that its users access. Article 3, Chapter I of the Telecommunications Business Act states, "No communications being handled by a telecommunications carrier shall be censored," while Article 4 states, "The secrecy of communications being handled by a telecommunications carrier shall not be violated."

Article 21 of The Constitution of Japan states, "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated."

Nakazawa's case further stated that the site blocking is not stipulated in NTT 's Internet connection contract.

Background Information

NTT blocked the sites on Monday as a "short-term emergency measure" until the Japanese government is able to establish new legislation regarding site-blocking, with subsidiaries NTT Communications, NTT Docomo , and NTT Plala also implementing the site blocking.

NTT noted in its announcement on Monday that the decision to block pirated sites was the result of a meeting held on April 13 between content industry representatives and members of the Cabinet of Japan responsible for intellectual property policies and crime countermeasures. The Japanese government officially asked Internet service providers in Japan to block access to pirated manga websites on April 13. The request asks the providers to voluntarily block access, but the government plans to create new legislation in 2019 to expand the scope of site-blocking. Currently, the site-blocking law is only applicable to child pornography.

As of April 17 at 3:32 p.m. JST, the Mangamura pirated manga website became inaccessible, after the Japanese government named it among three sites that should be blocked for providing pirated manga, digital magazines, and other copyrighted content. However, the Asahi Shimbun newspaper reported on the same day that the site did not shut down due to site-blocking from an Internet service provider. According to the newspaper's source from a service provider, Mangamura was voluntarily shut down by its administrators.

Asahi Shimbun added that the separate server where the site's images were stored was also inaccessible. According to the paper's source, the action could not have been performed by anyone aside from the site's administrators.

The government said at the time that it was targeting three sites (Mangamura, AniTube!, and MioMio), adding that if it finds new websites, it will set up a consultation body made up of service providers and experts to decide on how to respond. The government also plans to submit a bill to the Diet aimed at restricting "leech sites," which aggregate and provide links to other sites that host pirated content.

The government had stated earlier this month that it planned to officially ask the providers to block the sites. According to The Mainichi Shimbun , the hit counts on the three pirated sites has increased since last August when the sites became more well known. Sales of digital comics in Japan began to drop in the same month, after seeing a steady rise since 2012.

The Mainichi Shimbun previously noted that there is no clear legal precedent for asking providers to block access to the websites, and that the move may prove unconstitutional due to violating privacy of communication and functioning as censorship.

The government plans to use the argument that pirated content harms publishers and content creators, and that the site-blocking would be allowed under the "averting present danger" article of Japan's Penal Code.

Japan's Content Overseas Distribution Association (CODA) asserted to the government that between September 2017 and February, piracy has inflicted an estimated amount of more than 400 billion yen (about US$3.72 billion) worth of damage to copyright holders in Japan.

Sources: The Mainchi Shimbun, The Mainichi (English site), Sankei Biz via Hachima Kikō