Post a Message and Go to Jail: Criminalizing Internet Libel in Japan and the United States

Abstract

In the United States, criminal libel is, to paraphrase Ross Perot, the "crazy aunt we keep in the basement". American law professors write about it to denounce the continued existence of rarely enforced criminal libel statutes. In Japan, however, criminal libel laws have become vital tools in policing injurious speech on the Internet. Defamatory posts lead to police intervention and even arrest. Because the United States is considering regulation of online speech, including, potentially, criminal penalties, we can learn from the experience of Japan. From a positive perspective, this Article explains why Japan would apply such laws to the Internet. From a normative perspective, the Article addresses why criminal libel is not a good choice for Japan. Finally, from a comparative law perspective, this Article also discusses why criminalizing online libel would be an even worse choice for the United States than Japan.

Keywords: Defamation, libel, cyberlaw, criminal, private ordering, social norms, Internet, police