Terrie's Take: The Right To Be Forgotten, in Japan, Philippine Investment, Money Laundering, and Trouncing Melanoma with iPS Cells!

Terrie's Take - AkihabaraNews.com

Terrie’s Take is a selection of Japan-centric news collected and collated by long-time resident and media business professional Terrie Lloyd. AkihabaraNews is pleased to present Terrie’s learned perspective; we all could use another take on the news - here’s Terrie’s:

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Terrie’s Take on October 13, 2014

Feature:

  • The Right To Be Forgotten, in Japan.

Briefs:

  • Philippines pushing public-private investment
  • More visa relaxation changes on the way
  • Money laundering legislation in the works
  • More social welfare hits on the elderly
  • Melanoma treatments using iPS cells

The Right To Be Forgotten, in Japan.
An interesting court judgment about Google searches and privacy rights took place here in Japan a couple of days ago. The Tokyo District Court ordered Google to remove search results that implied the man was connected to a criminal organization ten years ago. Google hasn't said they will appeal the decision to a higher court, so we imagine that they will comply with the order. This case is important because it appears to be echoing the finding in a European court earlier this year that private individuals have a right to be forgotten.

The case brings up three key points that we think will become increasingly debated as people start to realize the implications of them. Firstly, should people have a right to be forgotten? After all, if they did something illegal, shouldn't others have the right to know it, so that they are forewarned? Secondly, is it fair to force Google to be the recipient of these take-down requests, when it is simply indexing something that is on the web anyway? Thirdly, is the Japanese decision really saying that its private citizens have a right to be forgotten?

What we are not going to discuss today is the right to freedom of speech, since that concept is already in the mainstream and what we are trying to define with this Take is why there might need to be exceptions.

1. The right to be forgotten.

Laws about the right to be forgotten are well established in the western world, and at the core reflect the value and ideal of rehabilitation. We can all imagine the difficulties an ex-convict faces trying to keep their past private (different to them concealing the fact) when applying for a job. It is doubtful many companies will hire someone, even after a 20-year hiatus, if they know the applicant had done time. We hired an ex-con once, and it took a lot of will power to overlook his past, it's a very real deciding factor.

But the right to be forgotten is not just the domain of ex-cons. At a thousand lesser levels the same need for rehabilitation applies to the rest of us. For example, if you as a younger person couldn't pay your taxes, in some countries like the USA the authorities might display on the internet your delinquency until you do pay. Fair enough. However, years later, when you're applying for a home loan, even though you may have long-since paid those taxes, the home lender can still do an Experian search (which now include internet results, not just official records) and discover your past record, to your detriment.

Actually, this is problematic for MOST of the population, since there are few of us who don't have some personal blemish on our records, be it overdue taxes, disputed loans, bitter divorces, medical problems, traffic violations, unpopular religious affiliations, sexual orientation, and a multitude of other personal issues that can and do occur in our lives. We not only prefer to keep these things private, you really have to ask if others really have a right to know such information far beyond the immediate event, given that such knowledge may actively hurt the person being exposed for years afterward. For example, does a tax payment delay in 2004 justify being banned from working for a company 10 years later? This is disproportionate punishment.

There is a really good piece on this problem from Forbes columnist Joseph Steinberg: http://onforb.es/1sF08o4.

Moral issues aside, there is also the practical issue of the sheer numbers of people who have a background they don't want to share. We said it is "most" of us. Did you know that in the USA, 30% of the adult working population, about 65m people, have a criminal record? Yes, there are murderers and pedophiles in this number, but mostly these are people who didn't pay a traffic fine or who got busted for recreational drugs, etc. Add to this group those who have "negative" personal events (divorces, being outed, etc.), then we are talking about more than half the adult population.

Although Japan probably has fewer people with criminal records, public disclosure about lesser personal events can provoke equally negative reactions. For example, the reaction of private schools to divorced parents, or background checks of birthplace by conservative families on prospective brides and grooms. 27% of Japanese adults get divorced and most of them don't want the fact publicly known. We don't know how many Japanese are untouchables, or have tax and similar problems, but would imagine from the Kamei loans moratorium numbers, that the financial problems number must exceed 3-4m people (1.3m bad loans last year, and probably twice as many tax actions).

Outside of the Internet, officialdom in developed nations has long sanctioned the idea that past transgressions and events should be forgotten or forgiven. This is what the statute of limitations is all about. This legal concept is based on English common law and prior to that in Greek law (so it's an ancient tradition). Most developed nations divide the limits to legal action according to the severity of the transgression, with capital and severe criminal offenses having longer periods than minor crimes and civil cases -- and with the differences being based on the customs of each country. Tax offices for example have a limit on the period beyond which they can make claims on past disputes, usually a biblical seven years. Here in Japan, companies are only required to keep records for seven years and after that, whatever happened is cast on the trash pile of history.

2. Targeting Google

Google and other internet players repeatedly parrot that they are not active proponents in how search results are displayed, saying that they are merely reflecting what already exists on the internet. We think this is highly disingenuous, for not only is Google suddenly taking what should be local knowledge and impressions and making it global (bigger audience, bigger damage) but they also take it out of context. Further, Google has this little thing called "cached" content, which allows them to replay content even after the source has disappeared. This goes far beyond merely aggregated already existing data, and in our minds clearly puts Google in the role of publisher.

Anyway, taking things out of local context can be highly damaging. Usually as a member of a community you want to know WHY did a company owner get behind on their taxes? "Oh, it's because his/her biggest client went bust? Well, that's not so bad then..." Context lets us decide whether the person who is the subject of those searches is really culpable and whether we really want to associate with them. This is next to impossible to do if you're someone from the other side of the world looking to do business with the said businessperson, then reading something disturbing about them after a Google search.

Actually, in much the same vein, there is also the issue of whether the claims being made by the other party (if not official records) are for real or from a malignant source? For example, in the case of the Japanese businessman who won the court judgment against Google, he could well have been the victim of searches originally drawn from 2-Channel ("Ni-Channeru"), a notorious site where participants often make stuff up to hurt others. A Google search does of course tell you it's 2-channel, but would someone using Google translation and based outside Japan know that this site is infamous for false claims and that the Japanese authorities have tried a number of times to shut it down but can't because it relocated to Singapore? No.

Or, maybe a jealous ex-wife who wants to embarrass him to leverage more alimony out of him. With the advent of Google, and no way of controlling how they present their search results, almost anything can be (and is) contrived and posted on a JPY5,000 per month rental server at Livedoor. Then, once the aggrieved party's claims are out in public view, people start clicking to read the salacious facts, Google promotes the link higher in the search results as a result, and in a few days only the most lurid and titillating links appear on related searches. This is just plain wrong and leaves innocent people vulnerable to the machinations of ruthless individuals with a stronger understanding of Google and its search algorithms. Yes, even now in the age of the internet it is the court of law that defines guilt, not the court of public opinion.

Freedom of speech advocates say that there are still legal options if someone doesn't like what Google throws up as search results, and indeed, the Spanish court ruling and now the Tokyo District Court ruling show that both individuals decided the harm was bad enough that they pursued this course. But the fact is that not only is this area of law difficult to pin down, being very similar to defamation, but that it is incredibly expensive to pursue as well. We don't know what the Tokyo claimant is paying in legal fees, but we imagine it's at least JPY5m-JPY10m. If he'd been in the USA, the starting point would have been a US$100,000 deposit. Not so many people have this kind of spare cash to throw around.

Not only that, but until the Spanish case, Google rather deplorably used to require any legal claim to ONLY be heard at the Santa Clara County Court, near their headquarters. While this is standard procedure in company-to-company agreements, it's extremely unfair to consumers. Google regularly receives legal claims knowing that very few people have the resources to pursue a court case in the U.S. against a legal team the size of Google's. It is certainly not a level playing field, and justice against Google for most people is a figment of the imagination. (For commentary on Google's legal strategy in this regard, see http://bit.ly/1ENpLYK). At least now with these court cases, they are being forced to be legally responsible in the many jurisdictions they are making money in.

Then, even with the ability to pursue matters personally, like defamation cases, once the negative mental connections are made, the damage is done. It's hard to undo the subconscious "knowledge" of the public. Yes, this situation existed long before the internet, but the fact is that in the past only major media organizations were able to spread defamation beyond a small community. As professional organizations they have their own rules in deciding what potentially defamatory content is broadcast and what is not. While not necessarily any fairer, it does at least mean a professional team will consider risk management and be legally liable for that decision. On the internet, a bitter ex-wife/ex-husband or obsessed ex-business partner are hardly going to be making the same calm decisions.

3. Japan's stance on the right to be forgotten

Possibly the most important thing to understand about the Tokyo ruling against Google is that Japan is not necessarily yet following in the footsteps of the European ruling, although it may initially appear that they are. We are not lawyers but we have enough experience with commercial law to know that the wording in a number of reports where the judge says that, "...some of the search results 'infringe personal rights,' and had harmed the plaintiff," is very important. Harm suffered by a plaintiff is a key consideration in Japan. You won't normally get a favorable ruling from a Japanese court in a libel case unless you can prove harm. In this particular case, the individual had received death threats and we think this was the motivating factor for the judge to find in favor.

Since without those death threats the court would have been simply deciding on the merit of right to be forgotten, and Japanese judges do not like to make risky judgments that set new precedents (bad for your career), we don't see a sudden flood of similarly favorable rulings yet. However, clearly the lawyer in this case was smart enough to introduce the consensus-building concept of the European legal policy, as well as a watertight source of "damage". Because of this confluence of factors, and the fact that the Japanese elite really do like their privacy, we can imagine an increase in claims happening as an outgrowth of this case. In particular, we can see cases that will involve politicians and attempts to stop Google from replaying 2-Channel postings. If correct, then Google had better get ready for a growing torrent of specific link removal requests.

Philippines pushing public-private investment
The Philippines is making 16 new public-private partnership (PPP) projects available for Japanese investment over the next 12 months. They include the operation and maintenance of airports, rail, prisons, ports, and water supply projects. Many of the projects are valued at the US$500m-US$1bn range, and therefore constitute major new opportunities for firms looking at their home market (in Japan) fade away. ***Ed: Major opportunities beckon Japanese companies. For example, a full 17% of Philippines national road network is still unpaved.** (Source: TT commentary from inquirer.net, Oct 11, 2014) http://bit.ly/ZAao5u

More visa relaxation changes on the way
The government appears really serious about its commitment to getting tourist numbers up to 20m a year, which would double the current contribution of inbound tourism to 1% of GDP. Last week it was relaxed visas for Indonesian citizens and this week it is multiple entry visas for Chinese able to prove sufficient income at home. The visas will allow China's wealthy and working professionals to come to Japan as often as they like for the period of the visa validity. Although there is such a visa already, it requires the recipients to spend at least one night in Okinawa, or Tohoku. This requirement will be eliminated. 970,000 visas were issued to Chinese last year, of which 45,044 were for multiple entry. (Source: TT commentary from japantimes.co.jp, Oct 12, 2014) http://bit.ly/1sCFmFJ

Money laundering legislation in the works
Giving way to pressure from the Paris-based Financial Action Task Force (FATF), Japan's bureaucrats have lodged proposed anti-money laundering legislation with the diet. Originally to be voted on late this year, it looks like the new bills will have to wait until early next year to be voted on and passed. According to FATF concerns, Japan is too lax about bank transfers under JPY2m, and also doesn't make laundering conspiracy a criminal act. But local lawmakers think the proposed legislation is a trojan horse for more government and international control over the citizenry. ***Ed: We agree with the local doubters about this legislation -- JPY2m is NOT a meaningful amount in the big world of money laundering, and this push to pass the new laws seems to have a more suspicious motive to it.** (Source: TT commentary from reuters.com, Oct 9, 2014) http://reut.rs/Zm1eck

More social welfare hits on the elderly
The inevitable is finally being discussed and looks like becoming legislation next year. The special health insurance payment discounts for those aged 75 and over look like they will be removed, putting the elderly on the same footing as everyone else, in having to pay the first 30% of any medical treatment they receive. The proposal comes from the health ministry and will affect around 1.7m people, potentially saving the government JPY80bn a year. ***Ed: In addition, and probably of greater interest to many of our readers, health insurance premiums are likely to INCREASE for those earning more than JPY14.5m a year. If you fall in that category, you may want to drop your base salary below that amount, and look for other non-taxable benefits instead.** (Source: TT commentary from nikkei.com, Oct 11, 2014) http://s.nikkei.com/1D5cn0o

Melanoma treatments using iPS cells
A group of researchers at Kanagawa's St. Marianna University School of Medicine, in collaboration with Tokyo's Jikei, are working on applying iPS stem cells to melanoma skin cancer lesions, to neutralize cancerous cells. The melanoma still needs to be removed in the usual manner, normally by surgery, but whereas in the past any remaining cells would be treated over a long period with various cancer-fighting drugs, those toxic preparations will now be replaced with the patient's own stem cells. Research shows that within 20 days, the new cells can be actively protecting the patient from additional spread of the melanoma. ***Ed: As a side benefit, the treatment may also restore the skin color of sufferers of vitiligo to its normal black, rather than blotchy patches of white.** (Source: TT commentary from nikkei.com, Oct 12, 2014) http://s.nikkei.com/1qM4apg

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That was Terrie's Take. What about yours? Let us know down below!

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Terrie's Take - AkihabaraNews.com

Terrie’s Take is a selection of Japan-centric news collected and collated by long-time resident and media business professional Terrie Lloyd. AkihabaraNews is pleased to present Terrie’s learned perspective; we all could use another take on the news - here’s Terrie’s:

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