The Criminalization of Revenge Porn in Japan

I. INTRODUCTIONRevenge is the practice of posting and distributing sexually explicit images of an ex-partner on the Internet after a breakup. Because of the serious damages it brings to the victims, it has become a significant social problem in the United States, Japan, and elsewhere. As a result, an increasing number of U.S. states and other countries now criminalize revenge porn. Some jurisdictions, such as New Jersey, had criminal statutes applicable to revenge porn before it became such a serious problem.1 As it grew into a major social issue in the 2010s, California followed New Jersey by enacting a criminal ban on revenge porn in 2013.2 In 2014, at least 12 more states introduced criminal bans on revenge porn, 3 and California revised its ban to expand the scope of punishment.4 Similar bills are now being reviewed by other state legislatures. Although revenge porn is still legal in most parts of the United States,5 a discernable national trend toward its criminalization is apparent. Anti-revenge porn legislation was also recently passed in Canada,6 England, and Wales.7Japan recently joined the list of nations that have enacted criminal bans on revenge porn. In 2014, the Diet, the Japanese national legislature, passed the Revenge Porn Victimization Prevention Act (the Act).8 Despite being problematic legislation, the Diet took only two days to pass the Act. Although some may claim that the Act is insufficient to protect victims because it is too limited in scope and the degree of punishment is too lenient, such limitations are understandable. However, the Act may in fact be too ambiguous and overbroad, raising serious questions as to whether it unconstitutionally infringes upon freedom of expression.Part I of this article supplies the background on Japan's criminalization of revenge porn, including a recent, noteworthy example that spurred such criminalization. Part I also argues that extant criminal legislation may have provided adequate protection in some cases prior to the enactment of the Act. Part II examines the Act and compares it with similar state provisions passed in the United States. Finally, Part Ill of this article critically examines the Act in light of the constitutionally protected freedom of expression, inquiring whether the Act could be justified. This article argues that the Act is too ambiguous and overbroad and raises very serious constitutional questions that the Diet should have addressed more carefully before passing it. This examination aims to provide insights for other jurisdictions considering criminalizing revenge porn.II. BACKGROUNDtA.Revenge Porn in JapanAt issue is the practice of posting and distributing sexually explicit images of an ex-partner on the Internet after breakup. Most often, the victim is female.9 In some cases, the images were made without consent. For example, when the ex-partner surreptitiously takes pictures or videotapes the individual or the couple having sex without the other partner's knowledge. In most cases, victims consent to taking the picture or video, or photographed or recorded herself and then gave the pictures or video to her partner, trusting that they would remain confidential. After a breakup, the ex-partner uploads these images to the Internet to embarrass or shame the victim.Revenge porn may also be a consequence of sexting, the prevalent practice of sharing sexually explicit images via smart phones and social media.11 Indeed, it was reported in the United States that 30 percent of teens sext self-made nude pictures to someone else.12 Given how common sexting is, the ease of sharing pictures and videos online, and the perennial pattern of people making poor choices after a contentious breakup, it is not surprising that many private sexts show up on the Internet.Revenge porn causes serious damage to the victim and has become a significant problem in the United States. The damage to the victim has been significantly aggravated as revenge porn websites, such as IsAnyoneUp. …

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