Court Rules a Link to Porn Illegal

Back to Contents of Issue: June 2000

Japan Walks Where the US Fears to Tread

by Daniel Scuka

Japan has again chosen the path less traveled by in this country's quest to resolve issues of law and the Internet: a recent Osaka District Court ruling found that, in some cases, links from one site to another may be considered a breach of law. On March 30, Judge Masayuki Kawai ruled that the mere act of creating a Web page containing links to another site that is itself in violation of the law could be considered as aiding and abetting the creator of the linked-to site. Judge Kawai further found that guilt may be established even though the creator of the link-containing page may be unaware of the illegal nature of the linked-to site.

The ruling involved one Mr. Kiuchi, a 33-year-old white-collar worker in Yokohama, who offered image processing software called FLMask, created by himself, for download and sale via his personal website. FLMask claims the dubious distinction of being able to remove the blurred masking pixels that operators of porn sites add to their digital images to cover the naughty bits -- allowing them to claim compliance with the obscenity law. Users of the program could thus view the images free of any censoring cover.

Kiuchi conveniently included links to pornographic sites so that purchasers of the program could quickly try out their new software. An executive at one of the porn sites had already been found guilty of contravening Article 175 of Japan's penal code, which bars the distribution of pornographic material. (In Japan, it's "pornographic" whenever the naughty bits are showing. Hence the fuzzing.)

Kiuchi, however, was charged under Article 62, which concerns the aiding and abetting of crimes under Article 175. The point of law in question was whether he was aiding the distribution of obscene material merely by selling FLMask and providing links to sites where it could be employed.

Judge Kawai ruled that Kiuchi had increased the number of ways to access obscene sites and had made it easier for many to view pornographic pictures, or rather, pictures that would be rendered pornographic in the eyes of the law once FLMask's processing wizardry was applied to them, and that he was therefore guilty of abetting crime. Kiuchi's one-year sentence was suspended for three years.

In his verdict, Judge Kawai mentioned that there was clearly a vast amount of obscene material available on the Internet and that according to Japan's constitution it was necessary for restrictions to be applied for the sake of public welfare. He added that punishing offenders did not amount to an infringement of people's freedom to post information on the Internet.

The ruling follows another Osaka court decision last year in which a local resident and Japanese citizen was convicted of distributing obscene material via the Internet despite the fact that the Web server that cached and transmitted the images was located in the US. Although Japan's courts appear to be going counter to received wisdom in the West regarding individual rights and freedoms, the situation in countries like Canada and the US is by no means settled. "The [Osaka] decision is another in the growing number of cases addressing the issue of liability for linking," says Michael Geist, law professor at Canada's University of Ottawa. "At the moment, there is considerable uncertainty, and this case adds another perspective and yet further uncertainty. In the US, a recent case involving Ticketmaster found that linking was permissible without fear of liability. But in another case involving the Church of Scientology, a court ordered the removal of links on the grounds of copyright infringement."

Furthermore, US toy giant Mattel has taken action against distributors of the eponymously named "cphack" program that allows users to find out which sites its CyberPatrol blocking software says are off-limits. Mattel filed suit in federal court, and on March 28 the company won a temporary restraining order against the authors of cphack. DeClan McCullagh, Washington-based moderator of the politech mailing list, reported that Mattel attorneys immediately began bulk-emailing subpoenas even to people who merely linked to the cphack download sites. The ACLU has announced it will fight the action.

"This area of Internet law is still in need of a consensus approach. The Japanese case is important since it provides another perspective and assists the legal community in developing an effective legal standard for linking," says Geist.

But the question remains whose standard will be applied to legal matters that clearly involve multiple jurisdictions, cultures, and philosophies on the scope of individual freedoms. Japanese society takes the rule of law for granted and it is rare for individual rights or abstract extensions of individual freedom to be upheld against community standards. The Internet does not appear to be changing this.

"Ultimately, I think linking liability is a dangerous precedent, since I view links as little more than electronic citations," Geist says. "The mere fact that I can access the referenced material quickly with the click of a mouse should not establish any more liability than would a citation in a book."


Osaka District Court decision (Japanese):
More info on how FLMask works:
FLMASK Foundation:
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