Summary
Case law recognizes the possibility of excluding present infringement and prohibiting future infringement on the basis of the right to reputation.
1.1The Standard by Which the Path Opens
If only the path of receiving money later remains, it may be impossible to stop an infringement that keeps spreading. If damages amount to no more than belated recovery, the infringement that has already occurred and the infringement that will occur remain as separate questions. Beyond the discussion distinguishing the time when a subsequent lack of cause is learned from the point at which legal malice is presumed following the defeat of a good-faith recipient, the present question lies in whether damages are the only remedy available for an infringement of personality rights, and what the standard is for opening the channel to this relief. Plaintiff A demands deletion and an injunction against future acts on the ground that Defendant B's expression harms reputation, while Defendant B contends that it is criticism in the public interest. Are damages the only remedy available for an infringement of personality rights?
Summary of Decision [1] of Supreme Court Decision 2003Ma1477 decided January 17, 2005 holds that a person whose reputation has been unlawfully infringed may, "in addition to" seeking damages or a disposition for the restoration of reputation, "on the basis of the right to reputation as a personality right," seek exclusion of the ongoing act of infringement or an injunction against future infringement in order to prevent it. In this wording, the subject is the person whose reputation has been unlawfully infringed, the counterpart is the tortfeasor, and the acts sought are exclusion of the act of infringement currently being carried out and an injunction against future infringement. What this wording addresses is the power to seek an injunction founded on the personality right that is the right to reputation, and issues beyond the scope confirmed by the Summary are not addressed here.
The link joining the above wording to the conclusion of this section is the concept of an injunction claim based on personality rights. This term means a claim seeking to prevent an ongoing or future infringement. The above wording places the claim for damages and the claim for injunction as two distinct matters, and shows that, whereas the former targets the harm that has already arisen, the latter targets the infringement that continues now or will arise again. Because the two remedies target different objects, it is not thought that only one may remain; and so long as that distinction is maintained, the availability of damages does not displace the claim for injunction. It is settled, however, that the basis of the injunction lies in ongoing and future infringement, and when it comes to a prior restraint that blocks expression in advance, the separate question remains of satisfying the strict exception requirements laid down by precedent.
The strongest counterargument to this section is that an injunction may chill expression and criticism. A preventive injunction can become a means of silencing even truthful criticism in the public interest, and that disadvantage weighs especially heavily in the scene where Defendant B asserts public-interest criticism. The answer is that the mere availability of damages cannot exclude every claim for injunction, and within that compass the conclusion stands. The chilling effect identified by the counterargument remains unerased; accordingly the conclusion remains only in the sense that the exception requirements for prior restraint on expression are dealt with strictly, not in the sense that injunctions are always permitted.
The facts confirmed in the synthetic scene are only that Plaintiff A demands deletion and an injunction against future acts, and that Defendant B contends it is public-interest criticism. Deletion and a future injunction fall within the definition of a claim seeking to prevent an ongoing or future infringement, and here the records concerning the expression at issue, truthfulness and public interest, purpose, irreparable harm, the scope of the injunction, and cessation serve as items of comparison. In the scene, however, no year, amount, or date of commencement has been set, and no judgment outcome has been arranged; nor have the facts of an actual case or the results of performance been confirmed. Whether the relief demanded, the parties, and the conditions have been specified in the statement of claim, and whether the right underlying the chosen form of action can be defended, likewise remain undetermined on the basis of this material alone.
What this section permits is to refrain from asserting that damages alone are available for an infringement of personality rights, and to leave open the basis for an injunction against ongoing and future infringement and, with it, the path of the claim for injunction. What it does not permit is to exclude every claim for injunction merely by the availability of damages; and it is equally made clear that where nothing remains but the circumstance of being displeased by criticism, the strict conditions for a prior restraint are not met.
1.2The Conditions That Block Relief
Starting from the point that a loss may remain which is difficult to recover through after-the-fact compensation, it takes as its premise the question whether damages are the only remedy available for an infringement of personality rights. This question asks at once whether the remedy of a claim for injunction can be established, and what conditions block that remedy. The question places the problem of damages side by side with the problem of the claim for injunction, and aims to make clear when the channel is closed at the latter stage.
The source text to be read on this problem is the one that clarifies the scope of remedies founded on the right to reputation as a personality right. Supreme Court Decision 2003Ma1477 decided January 17, 2005 holds that "a person whose reputation has been unlawfully infringed may, in addition to seeking damages or a disposition for the restoration of reputation, on the basis of the right to reputation as a personality right, seek from the tortfeasor exclusion of the act of infringement currently being carried out, or seek an injunction against the act of infringement in order to prevent infringement that will arise in the future." In this wording, the subject is the person who has been unlawfully infringed, the counterpart is the tortfeasor, and the acts are defined as exclusion of the ongoing act of infringement and an injunction for the prevention of future infringement.
Following the distinction drawn by this wording, the stages of decision are divided. First it is determined whether a claim for injunction other than damages is available for an infringement of personality rights, and second it is decided whether the remedy excluding the ongoing infringement and the remedy preventing future infringement are each established. An injunction claim based on personality rights means a claim seeking to prevent an ongoing or future infringement. What the conclusion from the preceding section confirmed is the distinction between the time when a subsequent lack of cause is learned and the point at which legal malice is presumed following the defeat of a good-faith recipient; this does not newly define the requirements of a claim for injunction. Accordingly, the channel to a claim for injunction opens only when all statutory requirements are in place, and closes if even one is lacking.
This conclusion stands while leaving intact the counterargument that a preventive injunction may chill expression and criticism. The counterargument targets the loss that a claim for injunction may be used as a means of silencing in advance even truthful criticism in the public interest. Yet the mere availability of damages cannot exclude every claim for injunction; instead, the channel to this remedy is closed only where the exception requirements for prior restraint on expression are not satisfied, so that the remedy blocking publication and distribution in advance cannot be allowed. Without erasing the disadvantage the counterargument identifies, the boundary is drawn on the side of not excluding a claim for injunction in advance merely because a claim for damages is available.
The issue in this scene converges on how to place the records of the expression at issue, its truthfulness and public interest, the purpose of the claim, irreparable harm, and the scope and cessation of the injunction. Without the content of the expression at issue and the material on anticipated harm or public interest, whether a claim for injunction is established remains undetermined. If nothing remains but the circumstance of being displeased by criticism, the strict conditions for a prior restraint are not met; and on the facts of the scene alone, the outcome in favor of either side cannot be fixed.
What is confirmed in this section is the boundary that one cannot assert that damages alone remain, and equally that the mere possibility of a claim for injunction does not mean the remedy is thereby permitted. If even one of the statutory requirements is not satisfied, the channel to a claim for injunction closes; and an open channel likewise does not mean the result of actual payment or delivery. The distinction between the time when a subsequent lack of cause is learned and the point at which legal malice is presumed following the defeat of a good-faith recipient remains only as a conclusion of the preceding stage of analysis.
1.3The Boundary That Remains When There Is No Data
The so-called injunction claim based on personality rights means a claim seeking to prevent an ongoing or future infringement, and this is the place to ask what meaning such a claim carries. In this scene Plaintiff A demands deletion and an injunction against future acts on the ground that Defendant B's expression harms reputation, and Defendant B contends that it is public-interest criticism; yet amid such a clash, it must be asked whether it is right to exclude a claim for injunction entirely merely because the path on which damages can be obtained is already open. That very point is the boundary this article must keep open.
This precedent departs from the nature of the right to reputation, irrespective of the content of the expression. Supreme Court Decision 2003Ma1477 decided January 17, 2005 states that "reputation is, along with life and body, a highly important legal interest protected by law, and the right to reputation as a personality right is a right possessing exclusivity, just as in the case of real rights." This wording designates reputation, side by side with life and body, as a legal interest important enough to protect, and clarifies the nature that this personality right is a right possessing exclusivity, as with real rights. The subject indicated by that exclusivity is the person who has been unlawfully infringed, and what that person may seek is founded on the right to reputation itself.
The reason the ensuing wording places two stages of decision side by side lies in the distinction that follows. Supreme Court Decision 2003Ma1477 decided January 17, 2005 writes that "a person who has been unlawfully infringed may, in addition to seeking damages or a disposition for the restoration of reputation, on the basis of the right to reputation as a personality right, seek from the tortfeasor exclusion of the act of infringement currently being carried out, or seek an injunction against the act of infringement in order to prevent infringement that will arise in the future." Here the stage of seeking damages or a disposition for the restoration of reputation responds to the consequences of infringement already past. By contrast, exclusion of the ongoing infringement and prevention of future infringement point in the direction of stopping infringement that has not yet ended or will occur hereafter. The two may be spoken of together, but their effects must not be taken as the same.
Yet a narrow constraint remains on the availability of injunction spoken of by precedent. The fact that a claim seeking to enjoin an expression can cover not only attacks disguised as criticism but also truthful, public-interest criticism is itself a real harm. It is so alike in that, for the person singled out as the target in the sentence, the discomfort remains entire, and for the person who hears that expression, it is a channel of information that will henceforth be closed. Following the conditions the author has laid out, one must not simply reach for the frame that an injunction is possible without first examining the content of the expression at issue, the truthfulness and public interest it contains, and the scope of the injunction. Nor, for that matter, can every claim for injunction be excluded merely by the availability of damages; and judgment is not completed in a way that erases the limit remaining at the end of the weighing.
Within the synthetic scene, what can be fixed is only the position of the dispute. Plaintiff A puts forward deletion and a future injunction, and Defendant B public-interest criticism; yet the actual content of the expression placed in issue, the anticipated harm it is said to entail, and further the material for gauging public interest are not given. It must therefore be regarded that the material for deciding that point has not yet been specified. The mere fact that the categories of material needed for judgment have been fixed does not mean that the content of each item of material is in place; nor does the absence of material close the legal channel itself. If it is confirmed that nothing remains but the circumstance of being displeased by criticism, the strict conditions for a prior restraint are not met; even so, the remaining ground cannot be declared impossible.
Accordingly, the conclusion that can be put forward here is as follows. In the case of an infringement of personality rights, beyond damages and recovery of residual harm there is a path of seeking exclusion of the ongoing infringement and prevention of future infringement. To determine, however, whether that path leads to an actual injunction, material concerning the expression at issue, the anticipated harm or public interest must be in place, and where a prior restraint on expression is sought, the strict exception requirements laid down by precedent must be surpassed. It is too early to regard the legal channel itself as closed merely because the material was empty and no judgment could be made.
1.4The Records Needed for Determination
The preceding stage distinguished the time when a subsequent lack of cause is learned from the point at which legal malice is presumed upon the defeat of a good-faith recipient. In the same stream of argument, the question now is whether damages alone remain for an infringement of personality rights, and what records are needed to decide the establishment of a claim for injunction. Records in this question mean the combined records of the expression in issue, the truthfulness and public interest of that expression, the purpose demanded, irreparable harm, the scope of the injunction sought, and the traces of cessation.
The precedent recognizes the possibility of excluding an ongoing infringement and enjoining future infringement on the basis of the right to reputation. (Supreme Court Decision 2003Ma1477 decided January 17, 2005) Summary of Decision [1] regards "the right to reputation as a personality right" as "a right possessing exclusivity, just as in the case of real rights," and holds that a person who has been unlawfully infringed may, "in addition to seeking damages or a disposition for the restoration of reputation," seek an injunction against the act of infringement. In this wording the subject is the person who has been unlawfully infringed, and the acts are exclusion of the infringement currently being carried out and prevention of future infringement. The condition is an unlawful infringement founded on the right to reputation as a personality right, and issues under other provisions are not addressed.
Joining this holding to the conclusion of this section, no ground remains for the answer that damages alone are correct to the question whether damages are all that is available for an infringement of personality rights. The precedent places two routes side by side: the disposition of damages and restoration of reputation, and the injunction against infringement. Here the author calls for a distinction between the path of recovery and the path of cessation. Recovery is oriented toward filling the harm already suffered, while cessation is oriented toward stopping ongoing and future infringement. Because the two aim at different points in time, the availability of one does not automatically erase the availability of the other. Accordingly, the stage-by-stage determination is made solely on the material recorded in the records of the expression at issue, truthfulness, public interest, purpose, irreparable harm, the scope of the injunction, and cessation, returning to the condition that absent records are not filled in by conjecture.
The strongest counterargument targets the point that a preventive injunction can silence even truthful criticism in the public interest. If the path that blocks in advance expressions containing criticism widens, even matters requiring oversight and public debate may fade before the threat of litigation, and that loss falls upon both the speaker and those who would hear the words. Without erasing this disadvantage, the conclusion is maintained that every claim for injunction cannot be excluded merely by the availability of damages. The counterargument can serve as ground for making the conditions for an injunction more exacting, but it cannot change the position so that damages alone remain for an infringement of personality rights. The condition is left unchanged, however, that in the case of prior restraint on expression one proceeds to the stage of injunction only when the strict exception requirements of precedent are satisfied.
The facts confirmed in this scene are only that the demand targets deletion and a future injunction, and that the defense is public-interest criticism. What the expression at issue itself is, what the material on its truthfulness and public interest is, what the basis of irreparable harm is, how far the scope of the injunction sought extends, and whether there are traces of actual cessation cannot be determined from this scene alone. These items therefore remain undetermined, and it is likewise not asserted that the path to an injunction is closed merely because the material is empty. If nothing remains but the circumstance of being displeased by criticism, the strict conditions for a prior restraint are not met.
The conclusion this section permits is that, in an infringement of personality rights, beyond damages and a disposition for the restoration of reputation, a claim for injunction seeking exclusion of the ongoing infringement and prevention of future infringement may be recognized, and that the material for deciding that stage is limited to the records of the expression at issue, truthfulness, public interest, purpose, irreparable harm, the scope of the injunction, and cessation. The conclusions not permitted are closing every claim for injunction merely because the path of damages is open, and raising the stage by adding facts not in the record through conjecture.
1.5Circumstances That Change the Decision
It is precisely in that gap that the question whether a violation of personality rights admits only of damages is opened again. In this scene, no amount and no date have been fixed. The point in dispute now, however, is not the size of the money but whether a path to stopping the infringement right now is open.
As the authority for this question there is Summary of Decision [1] of Supreme Court Decision 2003Ma1477 decided January 17, 2005. Its language speaks of a person whose reputation has been unlawfully infringed. It states that, in addition to being able to seek damages or a disposition for the restoration of reputation, that person may, on the basis of the right to reputation as a personality right, seek against the wrongdoer the exclusion of the current act of infringement or, in order to prevent future infringement, the prohibition of the act of infringement. That is, the subject is the person who has been infringed, the counterpart is the wrongdoer, and the object is the exclusion of the current infringement and the prevention of future infringement.
Between this language and the conclusion of this section lie two steps. The first step is the confirmation that, in addition to damages, the remedy of prohibition is in principle open in cases of infringement of personality rights. The second step is the conditions under which that path is actually opened, and in particular, in the case of prior restraint on expression, the judgment that the strict exception requirements of the precedents must be satisfied. The distinction, drawn in the previous section, between the time when one learns of the absence of a cause after the fact and the time of deemed legal malice arising from the defeat of a good-faith acquirer serves as a reminder that these two steps deal with different points in time and different conditions. Accordingly, the mere confirmation of the possibility of prohibition must not be taken as granting a remedy that blocks publication and distribution in advance. If the later step is not satisfied, the channel for blocking in advance is closed.
The strongest counterargument lies in the point that prohibition may chill expression and criticism. Preventive prohibition can become a means of silencing even truthful, public-interest criticism. The defense of public-interest criticism advanced by Defendant B squarely targets this loss. The discomfort of losing one's voice and the cost of diminished public-interest discussion must not be underestimated. Even so, the mere possibility of damages cannot exclude all claims for prohibition. Damages deal belatedly with harm that has already occurred, but a response to an infringement that continues to spread sometimes remains available only through prohibition.
What has been confirmed in the present scene is only the shape of the claim. Plaintiff A demands deletion and a prohibition for the future, and Defendant B asserts that the matter is public-interest criticism. The expression at issue, truthfulness, public interest, and purpose, irreparable harm, the scope of prohibition, and the record of cessation have been fixed only as the kinds of items to be used in the judgment, not as collected records. In the present state, where there is no material on the content of the expression or on the anticipated harm or public interest, whether the requirements are satisfied cannot be confirmed. If it is confirmed that only the circumstance of being displeased by criticism remains, it will not be regarded as satisfying the strict conditions for prior restraint.
Accordingly, what this section permits is the exclusion of the conclusion that only damages remain for an infringement of personality rights; what it does not permit is the conclusion that, by confirming the possibility of prohibition, blocking before publication has thereby been justified at once. The mere possibility of damages cannot exclude all claims for prohibition, and to do so would result in surrendering to the counterargument and abandoning the judgment.
1.6The Strongest Counterargument and the Answer
Damages are closer to a means of filling in harm that has already passed, and in the case of continuing expression, the problem remains that the infringement continues even after payment. The question addressed here is whether all claims for prohibition must be barred on the sole ground that only the possibility of damages exists. Only the form of the claim is at issue; the very existence of the right is not being doubted.
The language states that "the right to reputation is a right possessing exclusivity, just as in the case of a real right," and, taking up the expression "in addition to being able to seek damages or a disposition for the restoration of reputation," it makes clear that "one may also seek the prohibition of the act of infringement in order to exclude the act of infringement currently being carried out or to prevent infringement that will arise in the future." Here the subject is the person who has been unlawfully infringed, the act is the infringement by the wrongdoer, and the condition is that it is founded on the right to reputation as a personality right.
The above language places the path of damages and dispositions for the restoration of reputation alongside the path of prohibition of infringement as distinct remedies. If damages indemnify the harm, a personality-right claim for prohibition is a claim seeking to prevent current or future infringement, and its object is different. If the two remedies are merged into one and only damages are left, the distinct purposes of recovering harm already suffered and of ceasing the infringement are both diminished. This distinction, however, does not mean that any expression whatsoever may immediately be blocked. Whether a claim for prohibition is granted follows separate requirements.
At the same time, the counterargument that prohibition may chill expression and criticism is not to be taken lightly. If truthful, public-interest criticism is bound in advance, public discussion shrinks, and because that loss is difficult to reverse, the disadvantage targeted by the counterargument is plain. The answer lies not in erasing the counterargument but in narrowing the conditions for allowing the claim. Prior restraint on expression is considered only where the strict exception requirements of the precedents are met. If those requirements are not reached, a remedy that blocks publication and distribution in advance cannot be allowed.
What is confirmed in the synthetic scene is only that a demand for deletion and a demand for future prohibition are raised together and that Defendant B disputes the matter on the ground of public-interest criticism. In that case, whether there is a basis for prohibition and whether the exception requirements are met are judged with regard to the expression at issue, truthfulness, public interest and purpose, irreparable harm, the scope of prohibition, and the record of cessation. This material has merely fixed the branches of the items needed for the judgment; it does not mean that their contents are in place. If it is confirmed that there is no material on the content of the expression, the anticipated harm, or public interest, the matter cannot be confirmed at this point. Non-confirmation is a lack of material, not a denial of relief as such.
In sum, the mere existence of the alternative means of damages cannot exclude a claim for prohibition founded on the right to reputation. Conversely, not every concern about infringement immediately constitutes a ground for prohibition. At this boundary, so long as damages and prohibition each keep the place assigned to them, the counterargument about the chilling of expression is dealt with through the strictness of the requirements.
1.7The Link to the Application and the Dispositive Part
On the premise that the mere possibility of damages cannot exclude all claims for prohibition, the question whether a violation of personality rights admits only of damages remains. The personality-right claim for prohibition addressed by this question means a claim seeking to prevent current or future infringement. Even after taking up the conclusion of the previous section, in the scene where Plaintiff A demands deletion and future prohibition on the ground that Defendant B's expression harms reputation, and Defendant B disputes this as public-interest criticism, the question is whether the very means of prohibition is open as a response to an infringement of personality rights.
The language of the precedents on this question is summarized as follows. Under the explanation that reputation is a highly important protected legal interest together with life and the body, and that the right to reputation as a personality right is a right possessing exclusivity, it was held that "a person whose reputation—that is, the objective evaluation received from society regarding a person's character, conduct, reputation, credit, and other personal values—has been unlawfully infringed may, in addition to being able to seek damages or a disposition for the restoration of reputation, on the basis of the right to reputation as a personality right, seek against the wrongdoer the exclusion of the act of infringement currently being carried out or, in order to prevent infringement that will arise in the future, the prohibition of the act of infringement" (Supreme Court Decision 2003Ma1477 decided January 17, 2005). Here the subject is the person whose reputation has been unlawfully infringed, the counterpart is the wrongdoer, and the act sought is both the exclusion of the current act of infringement and the prevention of future infringement.
The judgment asserted by the above language is that, "in addition to" damages or a disposition for the restoration of reputation, prohibition may be sought. What this "in addition to" points to is the distinction between the ex post means of damages and the preventive means of prohibition. If damages aim at indemnifying harm that has already occurred, a personality-right claim for prohibition is a claim seeking to prevent current or future infringement, and it targets the continuation or repetition of the infringement itself. Accordingly, the precedents recognize the possibility of excluding current infringement and of prohibiting future infringement on the basis of the right to reputation, and do not regard this as replaced by the mere possibility of damages.
This possibility of prohibition confronts the counterargument that it may chill expression and criticism. Preventive prohibition can become a means of silencing even truthful, public-interest criticism, and that disadvantage falls both on those who wish to criticize and on those who would hear them. Yet the mere possibility of damages cannot exclude all claims for prohibition. Since the previous section has already pointed out that ex post damages may fail to slow future infringement, the risk of chilling cannot serve as a ground for closing claims for prohibition as a rule. This answer, however, does not exempt one from the question under what conditions a claim for prohibition is allowed.
The facts belonging to this section in the synthetic scene amount only to this: Plaintiff A, on the ground that Defendant B's expression harms reputation, demands deletion and future prohibition, and Defendant B disputes this as public-interest criticism. These facts alone do not fix the content, truthfulness, public interest, and purpose of the expression at issue, whether recovery of the anticipated harm is difficult, the scope of prohibition, or whether it has ceased. Accordingly, this scene supports the judgment only to the point that the means of a claim for prohibition is open in responding to an infringement of personality rights, and whether each remedy is actually allowed remains unconfirmed.
The conclusion permitted by this section is the judgment that it is not the case that only damages are available for an infringement of personality rights, and that the precedents recognize the possibility of excluding current infringement and of prohibiting future infringement on the basis of the right to reputation. By contrast, this judgment does not determine how far, until when, and to what extent a given expression may be prohibited, nor does it fill unconfirmed records with confirmed facts.
1.8The Scope This Section Undertakes
Damages alone go no further than filling the loss after the infringement has already occurred, and the harm that grows while the expression continues to circulate is difficult to reverse. After distinguishing the time when one learns of the absence of a cause after the fact from the time of deemed legal malice arising from the defeat of a good-faith acquirer, the issue between Plaintiff A and Defendant B is narrowed as follows: in this scene, does a violation of personality rights admit only of damages?
Supreme Court Decision 2003Ma1477 decided January 17, 2005, on this question, states as a premise that "reputation is a highly important protected legal interest together with life and the body, and the right to reputation as a personality right is a right possessing exclusivity, just as in the case of a real right," and then states that "in addition to being able to seek damages or a disposition for the restoration of reputation, on the basis of the right to reputation as a personality right, [one may seek] against the wrongdoer the exclusion of the act of infringement currently being carried out or" ((Supreme Court Decision 2003Ma1477 decided January 17, 2005), Summary of Decision [1]). And its language continues: "may also seek the prohibition of the act of infringement in order to prevent infringement that will arise in the future." Here the object of exclusion is "the act of infringement currently being carried out," and the object of prohibition is "infringement that will arise in the future." The two expressions refer respectively to acts now occurring and acts that will occur in the future, and the counterparty to the claim is fixed as the "wrongdoer" who committed that infringement.
The above language treats the exclusion and prohibition of infringement as separate remedies alongside damages and dispositions for the restoration of reputation. Damages are a remedy that fills harm that has already occurred with money, and a personality-right claim for prohibition is a claim seeking to prevent current or future infringement. The former aims at recovering loss already past; the latter aims at stopping the very flow in which the infringement continues. The premise that the right to reputation is a right possessing exclusivity lies at the base of this distinction. If it is an exclusive right, there is no reason to tolerate the infringement and end with ex post compensation alone; the right-holder must be able to seek directly the cessation and prevention of infringement. Accordingly, the view that an infringement of personality rights admits only of damages does not accord with the language of the precedents.
The counterargument to this distinction targets freedom of expression. If the object of criticism takes up a claim for prohibition as a weapon, the expression may disappear before fact-finding is complete and public discussion may be chilled. That prohibition may chill expression and criticism does not disappear. The risk the counterargument points to must be dealt with as a matter of strictly distinguishing the requirements of a claim for prohibition; it does not lead to the conclusion of erasing the remedy form of prohibition itself. The circumstance that Defendant B disputes the matter as public-interest criticism remains as it is in that review of the requirements.
Comparing this scene with the foregoing conditions, Plaintiff A is demanding both deletion in the present and prohibition for the future, and these fall respectively under the two forms of exclusion and prohibition distinguished by the precedents. However, on this scene alone, no records have been fixed as to the content, truthfulness, public interest and purpose of the expression at issue, irreparable harm, the scope of prohibition, and cessation. These items fix only the branches of the materials needed for the judgment, not that those materials are in place. Accordingly, all that can be confirmed is that a claim for prohibition founded on personality rights is allowed as one form of remedy, and whether that claim will be accepted remains unconfirmed.
The conclusion permitted by this section is as follows. It is not the case that only damages are available for an infringement of personality rights; on the basis of the right to reputation, one may seek the exclusion of current infringement and the prohibition of future infringement. The conclusion not permitted is equally clear. The mere fact that the form of a claim for prohibition exists does not itself mean the claim will be granted, and the defense of public-interest criticism has not ended either. If the exception requirements for prior restraint on expression are not satisfied, a remedy that blocks publication and distribution in advance is not allowed.
1.9Application of the Text of the Provisions and the Holdings of Precedents
In a structure that compensates only after the fact through damages, it is difficult to reverse the spread of expressions that have already circulated, and the erosion of evaluation that accumulates in the meantime is difficult to restore with money. Confronted with this problem, the issue is whether, for infringement of personality rights, only damages are available, or whether a claim to prevent the infringement also arises separately. This section takes the relevant source text as the basis of decision in order to answer this question. The earlier distinction between the point in time when the absence of a cause ex post is learned and the point in time at which a good-faith recipient's defeat gives rise to presumed bad faith in law is carried over as it stands.
Summary of Decision [1] of the relevant source, Supreme Court Decision 2003Ma1477 decided January 17, 2005, declares that, on the basis of the right to reputation as a personality right, a claim to enjoin acts of infringement may be sought. According to Supreme Court Decision 2003Ma1477 decided January 17, 2005, "on the basis of the right to reputation as a personality right, one may also seek, against the perpetrator, an injunction against acts of infringement in order to exclude the act of infringement currently being carried out or to prevent an infringement that may arise in the future." This language takes the person who has suffered unlawful infringement of reputation as the subject of the claim, and takes as the object of the claim the act of seeking, against the perpetrator, the exclusion and prevention of acts of infringement. The reputation that the precedents speak of is, together with life and body, a highly important legally protected interest, and the explanation that the right to reputation as a personality right is a right possessing exclusivity is placed alongside as a premise of this language.
If the basis of decision and the conclusion are joined together in accordance with this language, the person whose reputation has been unlawfully infringed is not confined to seeking damages or disposition for the restoration of reputation alone. That person may also claim an injunction going so far as to exclude a currently occurring infringement or to prevent an infringement that may arise in the future. Here damages and injunctive claims are distinguished as referring to different stages. Damages are the path for filling a harm that has already occurred, whereas an injunctive claim for personality rights is a claim seeking to block current or future infringement, aimed at the cessation and prevention of infringement. If this distinction does not hold, one is led into the erroneous judgment that the availability of damages substitutes for every channel that blocks infringement.
Notwithstanding this distinction, the strongest counterargument targets the point that preventive injunctions may chill expression and criticism. The anxiety that lies at the center of that counterargument is that if even truthful criticism in the public interest is blocked in advance, public discourse falls silent and the value of criticism in the public interest suffers harm. Yet the foregoing answer is maintained even as it does not erase this disadvantageous aspect. The chilling of expression that the counterargument targets is a circumstance to be dealt with concretely in assessing the requirements for a prior restraint, but that circumstance alone cannot serve as grounds for excluding the very establishment of an injunctive claim.
In this scene, the present language is used for decision on the question whether the expression constitutes an act of infringement against the right to reputation as a personality right, and whether an injunction may be sought to exclude or prevent that infringement. The scene alone does not establish the content of the expression at issue, its truthfulness and public interest, its purpose, the presence or absence of irreparable harm, the scope of the injunction, or the record of cessation. Accordingly, when applying the standard that, if the only remaining circumstance is that one is made uncomfortable by criticism, the strict conditions for a prior restraint are not deemed satisfied, it is not possible to determine, on the facts of this scene alone, whether the requirements for a prior restraint are met.
The conclusion permitted by this section goes no further than to exclude, within the language of the relevant source text, the judgment that only damages may be sought for infringement of personality rights, and to recognize the path of an injunctive claim seeking the exclusion of current infringement and the prevention of future infringement. That this language declares the possibility of establishing an injunctive claim, and that the injunction is determined to have satisfied even the strict exception requirements for a prior restraint of expression, are separate judgments. Any broadened application to other passages of the reasoning of the judgment lies beyond the scope of this section, and the basis of decision is bound to the language within the scope of the relevant source.
1.10Fine Distinctions Within the Stage
This worry looms larger when damages are the only remedy available. The procedure for receiving money begins only after the infringement has already occurred, and in the meantime harm may accumulate. Its basis is the language of Supreme Court Decision 2003Ma1477 decided January 17, 2005. It must therefore be made clear exactly what an injunctive claim for personality rights means in this judgment.
That language premises that "the right to reputation as a personality right is, as in the case of real rights, a right possessing exclusivity." Reputation means the objective evaluation received from society with respect to personal values such as character, conduct, fame, and credit, and the right to reputation means an exclusive right covering such values. The precedents go on to hold that a person whose right has been unlawfully infringed may seek, against the perpetrator, an injunction against acts of infringement in order to exclude the act of infringement currently being carried out, or to prevent an infringement that may arise in the future.
This language places damages and injunctive claims side by side. The precedents state that, apart from being able to seek damages or a disposition for the restoration of reputation, one may, on the basis of the right to reputation as a personality right, seek the exclusion of current infringement and an injunction against future infringement. The point at which the two stages diverge is the matter of timing. Damages refers to the path of filling a harm that has already occurred, whereas an injunctive claim refers to the side that demands an act of halting or preventing in advance. Because this distinction holds, the precedents recognize the possibility of excluding current infringement and enjoining future infringement on the basis of the right to reputation.
The counterargument that such an injunctive claim may produce a chilling effect is not to be taken lightly. A preventive injunction may first cut off the publication and distribution of expression, with the result that even truthful criticism in the public interest may fall silent. An injunction order, of itself, narrows public discussion, so the risk of chilling expression and criticism cannot be entirely shaken off. The reason the precedents separately opened the possibility of an injunction on the basis of the right to reputation takes that point as its premise. The conclusion is maintained even as the weight of the counterargument is not erased.
Here, the deletion and the future injunction demanded by plaintiff A both accord with the meaning of an injunctive claim for personality rights. The fact that the content of the expression at issue, its truthfulness, public interest and purpose, irreparable harm, the scope of the injunction, and the record of cessation are set as the materials used for judgment determines the categories of materials; it does not mean that those materials are in place. Accordingly, the actual outcome or the content of the records is not determined.
The conclusion permitted by this section is narrow. One cannot say that only damages are available for infringement of personality rights, or that an injunctive claim is not established in the first place. An injunctive claim for personality rights means a claim seeking to block current or future infringement, and the precedents recognize the possibility of excluding current infringement and enjoining future infringement on the basis of the right to reputation. That definition alone, however, does not mean that a remedy that prevents in advance the publication and distribution of any particular expression is immediately permitted in this case. Whether the strict conditions for a prior restraint of expression have been met is not determined here. How are the prohibition of infringement of personality rights and the recovery of residual harm—its operation, its blocking, and its non-determination—distinguished?
1.11Synthesis of Effectiveness, Blockage, and Undetermination
If only a damages claim is permitted, harm accumulates while the infringement continues, leaving only a sum determined belatedly. In such circumstances, the question is whether the victim may seek a means of stopping even future infringement. That is, the question whether only damages are available for infringement of personality rights becomes clear only when the recovery of harm and the blocking of infringement are viewed separately. The analysis considers whether the exclusion of current and future infringement and their injunction are opened together.
The precedent that fixes the basis of an injunctive claim grounded in the right to reputation states as follows. "[1] Reputation is, together with life and body, a highly important legally protected interest, and the right to reputation as a personality right is, as in the case of real rights, a right possessing exclusivity; therefore, a person whose reputation—the objective evaluation received from society with respect to personal values such as character, conduct, fame, and credit—has been unlawfully infringed may, in addition to seeking damages or a disposition for the restoration of reputation, seek, against the perpetrator, an injunction against acts of infringement on the basis of the right to reputation as a personality right in order to exclude the act of infringement currently being carried out or to prevent an infringement that may arise in the future." (Supreme Court Decision 2003Ma1477 decided January 17, 2005) This language defines reputation as objective evaluation and takes the person who has suffered its infringement as the subject. The conduct is divided into the exclusion of the infringement currently being carried out and the prevention of future infringement, and the injunction is defined as sought on the basis of the right to reputation as a personality right.
The judgment that the precedents divide in two shows that the recovery of harm and the blocking of infringement are different matters. If damages or a disposition for the restoration of reputation deals with the consequences of infringement already past, an injunctive claim for personality rights is a claim seeking to block current or future infringement. The former aims at restoration, the latter at cessation and prevention, and the basis on which the latter is opened lies in the exclusivity of the right to reputation. Even while dealing with the same infringement of personality rights, the conditions under which an injunction is opened are that there exists a basis for enjoining current and future infringement and, in the case of a prior restraint of expression, that the strict exception requirements of the precedents have been satisfied. This means that a separate path of blocking is provided even before the harm has been determined.
An injunction may chill expression and criticism. If preventive relief is opened widely, public-interest debate may first halt in the courtroom and publication itself may be delayed, and that disadvantage is difficult to reverse. Yet even without ignoring such losses and inconveniences, one cannot exclude every injunctive claim on the strength of the availability of damages alone. For the conclusion that one must stand by and watch a continuing infringement merely because a path of damages exists does not follow. The blocking conditions are limited to cases in which the exception requirements for a prior restraint of expression are not met and a remedy that prevents publication and distribution in advance therefore cannot be allowed. The risk of chilling targeted by the counterargument is dealt with within this limitation.
This scene is merely one in which an injunctive claim and the dispute over the public interest of the expression are placed together; those circumstances alone do not determine whether the path is opened or blocked. Unless the content of the expression at issue, the anticipated harm, and the materials on public interest are gathered in the records, the matter remains undetermined. Accordingly, the points that cannot be decided on the scene alone are left unconfirmed, and the distinction of conditions fixed earlier is applied as it stands.
What this section permits is the judgment that, where a basis for enjoining current and future infringement is confirmed, an injunctive claim for personality rights does not collapse into a matter of damages alone. What it does not permit is the judgment that a remedy that prevents expression in advance is opened even without confirmation of the exception requirements. Where the records are empty, the lack of materials is not immediately converted into an inability to obtain relief; as the expression at issue, its truthfulness, public interest and purpose, irreparable harm, the scope of the injunction, and the record of cessation are gathered, the conditions diverge accordingly.
1.12Conclusion Carried Over to the Next Section
At the point where the earlier stage stopped—having distinguished the point in time when the absence of a cause ex post is learned from the point in time at which a good-faith recipient's defeat gives rise to presumed bad faith in law—the question remains whether only damages are available for infringement of personality rights. Damages is the remedy of filling the harm with money after the infringement has ended, but if the infringement continues or the possibility of its recurrence in the future remains, protection is not concluded with after-the-fact compensation alone. In the scene, plaintiff A demands deletion and a future injunction on the ground that the expression of defendant B harms reputation, and defendant B disputes this as criticism in the public interest; the question whether the remedy remains confined to damages thus arises as the first matter that will divide their dispute.
The language of the precedents concerning the right to reputation premises that "reputation is, together with life and body, a highly important legally protected interest, and the right to reputation as a personality right is … a right possessing exclusivity," and then, through the expression "in addition to being able to seek damages or a disposition for the restoration of reputation," delineates the scope of relief. Supreme Court Decision 2003Ma1477 decided January 17, 2005 holds that a person whose reputation has been unlawfully infringed may seek, against the perpetrator, an injunction against acts of infringement in order to exclude the act of infringement currently being carried out or to prevent an infringement that may arise in the future. Here the subject is the person unlawfully infringed, the counterparty is the perpetrator, and the object is the exclusion of current infringement and the prevention of future infringement. This language opens the seeking of an injunction as a separate route, distinct from a claim for damages after the fact.
This basis directly confronts the view that only damages are available, and clarifies the place of the injunctive claim. The injunctive claim for personality rights defined earlier means a claim seeking to block current or future infringement, and the exclusion and prevention of acts of infringement that the precedents speak of correspond precisely to those two stages. The exclusion of current infringement and the prevention of future infringement differ in the time frame each addresses and in the object each seeks to block, so if only one is argued, the scope of relief is misaligned. Accordingly, the circumstance that damages are available does not bar an injunctive claim; the two routes do not substitute for one another but stand side by side.
The counterargument that an injunction may chill expression and criticism targets the point that it can become a means of silencing even truthful criticism in the public interest in advance. If an injunction is permitted at the point where defendant B upholds his expression as criticism in the public interest, that disadvantage falls first on the one who would speak. Yet one cannot exclude every injunctive claim merely on the strength of the availability of damages. The circumstance that damages remain available does not mean there is no path to block infringement, and no matter how great the weight of the counterargument, it cannot erase the injunctive claim itself.
What is fixed in the synthetic scene is only the fact that plaintiff A demands deletion and a future injunction and defendant B disputes this as criticism in the public interest. These circumstances show the place at which the seeking of an injunction grounded in the right to reputation becomes an issue, but the records concerning the content of the expression at issue, its truthfulness, public interest, purpose, irreparable harm, the scope of the injunction, and cessation are not established. This has set the categories of materials needed for judgment; it does not mean that those materials are in place. Accordingly, on this scene alone it cannot be judged whether the infringement is currently ongoing, to what degree there is concern about future infringement, or how far the scope of the injunction should be set. That conclusion remains undetermined.
The range within which the question whether only damages are available for infringement of personality rights can be answered extends as far as the passage recognizing the possibility of excluding current infringement and enjoining future infringement on the basis of the right to reputation; whether an injunction may be barred on other grounds is not settled here. This material does not permit the conclusion that every injunctive claim is excluded solely because damages are available. Conversely, the judgment that an injunction is permitted is not a determination that publication can immediately be blocked, and the exception requirements for a prior restraint of expression remain as a separate threshold. Where there is a concern about infringement, can publication be prevented in advance?