Japan's Justice Ministry asked a popular Japanese website, "2 Channel," to delete anonymous postings on their discussion forum, according to Asahi Shimbun. The postings speculate about the identity of a 12-year old suspect in the murder of a Nagasaki 4-year old found dead on July 2, and include individual children's names and class photos said to include the suspect. The Ministry based its request (and others like it in the past) on the grounds that such postings violate the right of privacy of the children identified or pictured. Thanks to Online Journalism at USC Annenberg for the tip on this story.
This case raises questions related to the recent Court of Appeals decision in Batzel v. Smith, where a website operator's republication of allegedly defamatory rumors was found to enjoy immunity under §230 of the CDA. The postings in the Nagasaki case were made on a Japanese language site focused on issues of regional interest.
Hmmmm ... if this case arose within the jurisdiction of the CDA, would the immunity in §230 extend to invasion of privacy as well as defamation? There are exceptions to immunity in the act. §230(d) provides that it will not be construed to impair the effect of any "Federal criminal statute," nor "to limit or expand any law pertaining to intellectual property," nor "to prevent any State from enforcing any State law that is consistent with this section," nor "to limit the application of the Electronic Communications Privacy Act of 1986 * * * or any similar State law." CDA §230(d).
The Children's Online Privacy Protection Act (COPPA) addresses attempts to collect information from children under 13, not to the publication of information invading their privacy. And it has no criminal sactions that I've found. Children's Online Protection Act (COPA) has criminal sanctions, but is aimed at "harmful to minors" material that fits within a "community standards" obscenity test limited to sex content, which doesn't seem to cover this category. Besides, last I heard, COPA was under a Supreme Court stay while the Court of Appeals reviews its doubtful constitutionality.
Hmmm... leaves some interesting ambiguities to resolve.
What if: there were (as Lawrence Lessig suggests might be proper) a property interest in privacy?
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