- Internet rights: Constitution protects free speech. Data privacy protected by statute.
- ISP safe harbor: horizontal safe harbor for ISPs from copyright, defamation, and other liability; notice-and-takedown approach.
- Net neutrality: recognized by industry guidelines, subject to exceptions.
Summary: Japan has a highly developed Internet infrastructure, with very fast broadband speeds at modest prices. The Constitution protects free speech and free press, but does not contain a general right to privacy. Japan has a law protecting personal data and a horizontal ISP safe harbor. Industry practices have respected net neutrality.
(1) Free speech
Article 19 of the Constitution states: "Freedom of thought and conscience shall not be violated." Article 22 further 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." [Japanese text] [English text]
Japan has taken a permissive approach to online content, perhaps influenced by its desire to avoid the kind of censorship that occurred during and prior to World War II. Although the Criminal Code prohibits "indecent" material, including pornography depicting genitalia, the law has been sporadically enforced. In 2014, Japan prohibited child pornography, which until then was legal in Japan.
Japan has criminal and civil defamation laws. Article 230-1 of the Criminal Code makes it a crime to defame someone in person, irrespective of the truth or falsity of the comments. However, truth is a defense if the comments relates to the public interest and was made to benefit the public. Article 230-2.
Japan does not have a hate speech law, but is under pressure to enact one before the 2020 Olympics in Tokyo. According to a 2014 Economist article, hate speech against Koreans living in Japan has been a problem.
Japan's Constitution does not recognize a general right to privacy. Article 35 requires a warrant before law enforcement can conduct searches and seizures. The Personal Information Protection Act (Law No. 57 of 2003) establishes protection for personal information comparable to the EU Data Protection Directive. [English text]
Japan does not guarantee a legal right to Internet access. According to 2012 ITU figures, Japan has a 79.1% Internet penetration with 100,684,474 users.
ISP safe harbors
Japan's Provider Liability Law establishes a "horizontal" ISP safe harbor providing ISPs immunity from copyright, defamation, and other claims. The law follows a "notice and takedown" approach requiring ISPs to remove allegedly infringing material unless, within 7 days of sending notice to the alleged infringer, the ISP receives a counter-notice from the alleged infringer disputing the claim.
Japan's Ministry of Internal Affairs and Communications (MIC) worked in conjunction with telecommunications providers to establish industry guidelines for net neutrality. The guidelines recognize three principles: (1) ISPs should deal with traffic surges by increasing network capacity; (2) altering Internet traffic speeds should be allowed only in exceptional situations and (3) be justified by objective criteria.
- Internet rights: Free speech right subject to exception. Government censors political criticisms, defamation, pornography. Personal data protected.
- ISP safe harbor: OSP safe harbors are more limited than US DMCA
- Net neutrality: KCC Guidelines allow reasonable traffic discrimination
Summary: South Korea has Internet censorship of pornography, "cyber defamation," and criticisms of the government. It also recognizes a "3 strikes" copyright policy under which users' accounts may be terminated based on 3 allegations that they engaged in copyright infringement. Korea had a "real name" requirement of Internet users, but the Constitutional Court declared it unconstitutional.
(1) Free speech
South Korea's Constitution recognizes the freedom of speech and the freedom of press in Article 21. The Constitutional Court has interpreted this provision to include a right of access to information. Article 21 recognizes a limitation on the free speech right, however: “neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics.”
Under this exception, the South Korean government engages in Internet censorship to block or remove prohibited content. The prohibited content falls in a range of categories whose boundaries are malleable and may sweep in legitimate content.
- Political dissent, comments critical of the government, and content sympathetic to North Korea have sometimes been censored. Websites and tweets have been blocked. The authority for such censorship is sometimes unclear, but the content may perhaps be considered subversive communication under the National Security Act or as defamatory (see below).
- The Act on Promotion of Information and Communications Network Utilization and Information Protection criminalizes online defamation ("cyber defamation") of a person. In 2008, the suicide of actress Choi Jin-sil, possibly due to online rumors about her, sparked fervor among some in Parliament and the President to crack down on Internet content.
- Distributing pornography is illegal and pornographic websites abroad are often blocked in Korea. Sites based in South Korea are shut down. Volunteer "net cops" ("Nuri cops") assist the government to identify and block websites with pornography.
Articles 16 and 18 of the Korean Constitution protect for privacy. The Personal Information Protection Act of 2011 provides standards for the collection and storage of personal information. [English translation.] The Act is similar to the approach of the EU Data Protection Directive.
South Korea enacted the Information and Communications Network Act (Revised Act) in 2012. It protects people's resident registration numbers (RRNs), bars collection of such numbers by websites in most situations, and requires businesses to protect personal data they store. From 2003 to 2011, Korea had a law requiring websites of a certain size to require their uses to use their real names and identities as verified by RRNs when signing up for an Internet service. The law was meant to increase civility in online comments (and potentially to reduce criticism of politicians), but appeared to have little such effect according to one study by the Korean Communications Commission. In 2012, the Constitutional Court declared the law unconstitutional. It has since been abandoned.
According to a 2012 OECD study, South Korea has the highest broadband Internet penetration among countries, with 97.% of the population with broadband access. Korea also has the fastest average broadband speed at 22 mbps.
ISP safe harbors:
Articles 102 and 103 of South Korea's Copyright Act recognize ISP safe harbors from copyright liability. They are somewhat different than the U.S. DMCA safe harbors. The Korean safe harbors do not automatically bar damage awards against ISPs after the ISP carries out the notice-and-takedown of allegedly infringement content (as is the case under the DMCA). Liability "may be reduced or waived," which appears to give courts discretion in whether to impose liability. However, liability "shall be waived in those cases where such [OSP] attempts to prevent or stop reproduction and interactive transmission thereof when made aware that copyrights or other rights protected under this Act would be infringed upon due to the reproduction and interactive transmission of works, etc. by the other persons, but it is technically impossible to do so." Article 104 requires some websites, such as peer-to-peer network services, to engage in proactive efforts to stop infringement: OSPs "whose main purpose is to enable different people to interactively transmit works, etc. among themselves by computers (hereinafter referred as “special types of online service providers”) shall take necessary measures such as technical measures for blocking illegal interactive transmission of works, etc. upon the requests of rights holders."
Graduated response (3 strikes): In 2009, Korea passed a graduated response as a part of its copyright law. Graduated response is more commonly known as a "3 strikes" policy under which people can have their Internet accounts suspended if they receive 3 notices accusing them of engaging in online copyright infringement. The Minister of Culture, Sports and Tourism enforces the 3 strikes system and can order suspension of a user's account after the Korean Copyright Commission has considered the case. The Copyright Commission can also directly order suspension of a user's account if the user engaged in repeated infringement. Under a Presidential Decree, a subscriber's first suspension must be under one month, the second suspension must be for one month or more but under 3 months, and the third suspension must be for three months or more but under 6 months.
In 2011, the Korean Communications Commission (KCC) issued Guidelines for Net Neutrality and Internet Traffic Management. They required transparency in traffic management, prohibited blocking of legitimate content and unreasonable traffic discrimination, but allowed reasonable traffic management. Korean telecoms blocked temporarily, in separate incidents, Kakao's mobile VoIP and Samsung's SmartTV, which connected TVs to the Internet. In 2012, KCC promulgated a draft of further Guidelines on "Reasonable Traffic Management" and set up an advisory group of industry representatives and academics to study the issue.