Freedom of Expression and the Right to Protection Against Defamation: Cf. Handling of the Libel of the Criminal Law and the Libel of the Civil Law

Abstract

This study reviews natures of the Constitution, Civil Code, and Criminal Code of Japan in terms of the right to protection against defamation, and explores the foundations thereof. The point of it is to clarify the nature of the right to protection against defamation as indicated in the Constitution. 　The right to protection against defamation, along with the right to privacy, has long been recognized as a personal right. While the right to privacy relates to the private domain, the right to protection against defamation relates to one’s social reputation. The Constitution of Japan does not clearly stipulate the right to protection against defamation. However, the accumulation of precedents, such as the “After the Banquet” case, suggests that the right to protection against defamation is guaranteed in the Constitution. This study examines the nature of this guarantee and whether the right to protection against defamation, as formed through the Constitution, stands in conflict with freedom of expression, as well as whether it is guaranteed under Article 13 of the Constitution. In relation to this topic, this study reviews precedents relating to the right to protection against defamation and clarifies the significance of the right to protection against defamation as protected by the Constitution. 　The right to protection against defamation is essential in guaranteeing individual personal rights and the pursuit of happiness. Clarifying the existence of the right to protection against defamation could be considered a means of offering a better solution when guaranteeing freedom of expression stands in opposition to the right to protection against defamation