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Twitter users shocked at Japan court decision declaring 'retweet equals endorsement'

Journalist Yasumi Iwakami holds a press conference after the Osaka District Court ordered him to pay damages for defamation, in the city of Osaka on Sept. 12, 2019. (Mainichi/Hiroshi Muramatsu)
Social networking services like Twitter can be convenient, but a "slip of the finger" can get one in legal hot water. (AP)
Toru Hashimoto, former governor of Osaka. (Mainichi/Ai Kawahira)

OSAKA -- Twitter users are shocked by a decision handed down by the district court here stating that a retweet is equivalent to an endorsement, the exact opposite of the intent behind the oft-seen disclaimer, "retweets do not equal endorsements."

On Sept. 12, a judge ordered journalist Yasumi Iwakami to pay 330,000 yen in compensation to former Osaka Gov. Toru Hashimoto for defamation of character through a retweet. Hashimoto had sued Iwakami for 1.1 million yen in damages.

It all started two years ago. According to the ruling, in October of 2017, Iwakami once retweeted a third party's post suggesting that staff working under then Gov. Hashimoto had been driven to suicide. Iwakami deleted the retweet by December that year, but he had over 180,000 Twitter followers at the time, and the retweet is believed to have spread far and wide. Hashimoto filed suit against Iwakami, arguing that the retweet gave the impression that the former was a perpetrator of power harassment.

Whether Iwakami's retweet constituted defamation, whether there were special circumstances that made the retweet legal, and whether the lawsuit was a "strategic lawsuit against public participation," or SLAPP -- those in power positions such as politicians and executives at large corporations, suing less powerful people to interfere with their societal activities -- were all contested in the trial.

Presiding Judge Masayuki Suenaga pointed out on Sept. 12 that there was not enough evidence to confirm the veracity of the post that Iwakami retweeted. He added that Iwakami's retweet was an act indicating his endorsement of the message, which amounts to defamation. Suenaga also ruled that there are no special circumstances that make Iwakami's action legal, or make the lawsuit a SLAPP, and ordered Iwakami to pay 330,000 yen in damages to Hashimoto. Iwakami objected to the decision and indicated he would appeal.

That a court ruled that a retweet equals endorsement has sent shockwaves through the Twitterverse, most users expressing shock or doubt with posts such as: "Now there's no saying, 'All I did was retweet,'" or "Does this mean we can't even retweet sarcastically?"

A close look at the ruling, however, clearly shows that not all retweets are considered endorsements. It explains that retweeting "can be done for a range of purposes, such as to express endorsement of the original message, or to criticize the original message." When the purpose is to criticize or prompt debate, the ruling reads, "It is highly unlikely that one would retweet without additional comment. Generally one would attach a critical or neutral comment (to the original tweet)."

The ruling went on to say that except in special circumstances, including those in which the intention behind the retweet can be understood from the context, even if there is no additional message attached to the original tweet, it is fair to interpret a retweet as an endorsement of the original post's content.

Attorney Satoshi Fukazawa, who is well versed in internet-related legal issues, explains, "The latest ruling states that the retweet was an endorsement of the original tweet considering the context in which the retweet was posted, and does not assert that all retweets are endorsements as a general rule."

However, Yohei Shimizu, another attorney knowledgeable in the field, is far more alarmed at the court's decision. "There is also a Tokyo District Court ruling that recognized retweets as the same thing as one's own statements. One must be aware at all times that one is spreading information at one's own risk and responsibility. Unless you are retweeting information to notify people that the original tweet is a baseless rumor or hoax, it is dangerous to spread information of unclear provenance."

The Osaka decision also took issue with Iwakami's occupation and his large Twitter following. It pointed out that as a famous journalist who appears on television and in magazines, and who had a Twitter following of some 180,000 people, he had "social influence, and his tweets had the ability to spread and gain public confidence." The court acknowledged that because the retweet was made by someone of Iwakami's societal influence, it had diminished Hashimoto's reputation in society.

How many followers must one have to be recognized as having "societal influence"?

Chiki Ogiue (Mainichi/Motohiro Negishi)

Critic Chiki Ogiue says, "The more followers you have, the more influence you have. The notion that people referred to as 'influencers' are public figures is spreading amongst those people themselves."

Meanwhile, the number of followers attorney Shimizu cites is quite small, implying that even people with relatively few Twitter followers must be careful of what they retweet, too. "Based on past court cases, there is sufficient possibility of fulfilling the criteria of spreading information to 'an unspecified or a large number' of people if one has around 10 followers, and being found guilty of defamation. Additionally, the more followers one has, the greater capacity one has to spread information, making larger compensation awards possible."

According to the court ruling in the latest case, Iwakami was aware that the original tweet's suggestion that former Gov. Hashimoto drove staff working at the Osaka Prefectural Government to suicide was not true.

"The problem is not (Iwakami's) intention, of whether he endorsed the original tweet or not. It's that he retweeted false information," Ogiue emphasizes. "It's not just the person who conjures up the misinformation, but the people who spread it who are furthering the damage. You may think that the original tweet is not in your original words, but spreading the information itself is an act of expression. Many people may argue that they are unaccustomed to this kind of thinking in the world of the internet, but from a human rights standpoint, it's an important decision to be making."

Ogiue goes on to warn, "In the world of social media, retweets and 'likes' have allowed information to spread like wildfire, and unfounded rumors and revenge porn is also easily shared. Significantly lowering the bar for expression can accelerate unjustifiable actions."

Even if disseminating information brings down someone's social reputation, if it can be proven that there was sufficient reason to believe the information was credible, and dissemination was intended for the common good, claims of defamation will go unheeded. An example of such a case is when a journalist does as much reporting as possible and disseminates information resulting from it, but is ultimately found to have been wrong.

But that does not apply to the most recent case. "Mr. Iwakami himself has admitted that the content (of the original tweet) is fake news, so he cannot be immune from liability just because he's a journalist," says attorney Masakazu Masujima, an expert on the digital economy. "Rather, by the very fact that he is a journalist, his followers are more likely to believe him. Just because he's retweeting someone else's post, it's not something for which he can be let off the hook."

How should we interpret the fact that a "public figure," like the former governor of Osaka Prefecture, filed a suit against a journalist for a single retweet?

Former Sophia University professor Yasuhiko Tajima (Mainichi/Takuma Nakamura)

The court ruled that the lawsuit was not a SLAPP, which those in power or large corporations with massive legal funds file to silence the other party. However, former Sophia University professor and media law expert Yasuhiko Tajima told the Mainichi Shimbun, "As a basic rule, we should be wary about people with power filing lawsuits.

"Those in power have other avenues of expression, such as public relations teams and the opportunity to speak in public forums. Filing lawsuits with the courts is a right that individuals have, but if one is in a position of power, debates should be carried out in public forums," Tajima says. "The latest ruling said that the suit was not a SLAPP, but there could be cases in which the measures taken by Mr. Hashimoto may be considered as such. Mr. Hashimoto has the power to deliver messages. Shouldn't he be battling it out in the public forum with Mr. Iwakami instead of the courts?"

(Japanese original by Akane Imamura, Integrated Digital News Center)

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