A first-year middle school student in Kawasaki was murdered in an extremely brutal manner. Reportedly, speculative information identifying “apparent suspects in the case” was posted on the Internet by a number of anonymous individuals before the police had identified and started investigating the suspects in accordance with proper legal procedure. A criminal investigation of the suspects was then conducted by an investigative organization. By the time this article is published, the suspects will have been transferred from public prosecutors to a family court under Article 42 of the Juvenile Act, and the case will be in the hands of the juvenile court called the Family Court.
While there are several points at issue in the case, I will focus here on the “act of posting speculative information identifying apparent suspects in a case” and discuss what is problematic about this behavior from the perspective of criminal law, including juvenile law.
We can identify two major problems in terms of criminal law. One is related to the “Prohibition on publication in articles, etc.” provision laid out in Article 61 of the Juvenile Act, which was designed to promote the sound development of youth, and the other is related to the crime of defamation laid out in Article 230 of the Penal Code of Japan.
Article 61 of the Juvenile Act states, “No newspaper or other publication may carry any article or photograph from which a person subject to a hearing and decision of a family court, or against whom public prosecution has been instituted for a crime committed while a Juvenile, could be identified based on name, age, occupation, residence, appearance, etc.” Thus, the issue is 1) whether speculative information identifying “apparent perpetrators in the case” falls under the category of “a person subject to a hearing and decision of a family court, or against whom public prosecution has been instituted for a crime committed while a Juvenile” and 2) whether the act of posting information on the Internet falls under the category of carrying the information in a “newspaper or other publication.” A literal interpretation of the provision would inevitably yield a negative answer to both questions. One premise we should remember when considering this issue, however, is that the article is a prohibitive provision, not a penal one. If Article 61 had been constructed as a penal provision, it would be difficult to interpret punishable behavior in a broad way that departed from the language of the article due to a fundamental principle of criminal law called nulla poena sine lege (“no punishment without law”). The article is nothing more than a prohibitive provision, however. Thus, I would like to suggest that a broad interpretation of the article’s language, in which the “act of posting speculative information identifying apparent suspects in a case” is interpreted as falling under the category of behavior prohibited by the article, is a valid response to the two questions mentioned above, in terms of the concept of the “sound development” of youth established as part of the purpose of the Juvenile Act in Article 1.
With the knowledge that Article 61 is not a punitive provision, there is the danger that it will be ineffective in stopping those who intentionally violate the prohibitive regulation, allowing flagrant lawlessness to go unchecked. But the “act of posting speculative information identifying apparent suspects in a case” may fall under the crime of defamation in Article 230 of the Penal Code, independent of Article 61 of the Juvenile Act. I cannot make any further definitive statements without detailed information on the range of people targeted by the speculative posts, but the police could launch an investigation if a criminal complaint is lodged by those whose reputations were tarnished by the posts (we can easily imagine how difficult the investigation would be, however).
In conclusion, I would like to touch on the rule of law in the context of the “act of posting speculative information identifying apparent suspects in a case.” On the one hand, the state holds the exclusive right to punish under the rule of law. Not even the state, however, can exercise this right in an arbitrary manner and is subject to tough restrictions imposed by the legality principle (nulla poena sine lege) and the guarantee of due process of law when exercising it. On the other hand, the rule of law does not allow citizens to take the law into their own hands (lynching, etc.). By “posting speculative information identifying apparent suspects in a case,” sovereign citizens could be violating the rule of law themselves. I think measures need to be taken to prevent these kinds of incidents and avoid backsliding into an era of rampant “lynching,” which was supposedly banned by the people.
The Juvenile Act and other forms of criminal legal response are insufficient for preventing these incidents. Criminal legal response is a system centered on the process after a criminal incident has occurred. It is obviously limited in its ability to prevent the incident in the first place. Ultimately, it is essential that we construct a system of education in information ethics to prevent incidents like this one.
Those who use the Internet daily will have a keen appreciation for how convenient it is. This convenience is a double-edged sword, however, which holds the potential for fostering “lynching” behavior prohibited by the rule of law, depending on how it is used. Just this year, on February 4, the Ministry of Education, Culture, Sports, Science and Technology announced draft revisions to its curriculum guidelines for ethics, which will become an official subject in elementary and middle schools in 2018. The revisions modified instruction on “information ethics” from something to “keep in mind” to something to “improve.” I urge the government to ensure that the “instruction on information ethics” covers cases in which the principle of the rule of law may be negated through Internet use.
ABOUT THE AUTHOR
Masaoki Ishikawa
Director, Waseda Institute of the Policy of Social Safety; Professor, Faculty of Law, Waseda University (Criminal Policy, Juvenile Law)
[Profile]
Professor Ishikawa graduated from Waseda School of Law and completed the coursework at the Graduate School of Law before becoming a professor on the university’s Faculty of Law. He serves as the Director of the Waseda Institute of the Policy of Social Safety and specializes in criminal policy and juvenile law. His main research themes are the ideas of criminal reform and social rehabilitation and legal response systems for juvenile delinquents.
[Work Experience, Overseas Research, etc.]
Professor Ishikawa has served as a Director of the Japanese Association of Offenders Rehabilitation, Chairperson of the Kanagawa Prefecture Research Committee on the Regional Cooperation, and a Member of the Criminal Policy Discussion Group for the Japanese Correctional Association, a public interest incorporated foundation.
[Major Publications]
From the Criminal Justice System to a Social Welfare System: The Current State and Challenges of Diversion Programs [Shihō Shisutemu kara Fukushi Shisutemu e no Daibājon Puroguramu no Genjō to Kadai] (Seibundo), The Current State and Challenges of Multi-Agency Cooperation for the Protection of Children from Crime: Based on Agency Cooperation in the Three Designated Cities of Kitakyushu, Sapporo, and Yokohama [Kodomo o Hanzai kara Mamoru tame no Takikan Renkei no Genjō to Kadai—Kitakyūshū-shi/Sapporo-shi/Yokohama-shi no San Seirei-shi ni okeru Kikan Renkei o Moto ni] (Seibundo), Juvenile Delinquency and the Law [Shonen Hikō to Hō] (Seibundo), An Approach to Criminology [Hanzaigaku e no Apurōchi] (Seibundo)
