The Lower House Judicial Affairs Committee is considering a government-drafted bill to revise the Penal Code to make “bujokuzai” (the crime of insults) punishable by imprisonment.

The legislative initiative is a policy response to the proliferation of acts of insulting and disparaging others in social media.

Such verbal violence causes serious mental and physical damage to victims. It is also making a growing number of people hesitant to express their opinions and take actions in society in fear of possible social media attacks against them.

There is no denying the urgent need of a policy response to the problem.

The problem is that it is by no means easy to distinguish between insults and legitimate criticisms. The proposal to toughen the punishment for this crime would risk putting crippling pressure on people engaged in various acts of expression.

As an opposition party has submitted an alternative bill to address the problem, the Diet should weigh the proposals with caution. 

An act of insulting an individual in public, whether it is based on facts or not, is a crime punishable by “penal detention or a petty fine” under the Penal Code. Every year, several dozens of people are punished under this provision, mostly by a fine of 9,000 yen ($68.80), close to the upper limit of a petty (light) fine, which ranges from 1,000 yen to less than 10,000 yen.

The government’s draft bill would add an alternative penalty of “imprisonment (either with or without assigned work) of up to one year or a fine of less than 300,000 yen.”

The Penal Code contains a separate provision for punishing defamation, which is defined as damaging the reputation of an individual “by making allegations in public, regardless of whether such facts are true or false.” This crime is punishable by imprisonment for not more than three years or a fine of not more than 500,000 yen.

There is a provision, however, for exempting such acts from punishment when they concern “matters of public interest” and are conducted for “the benefit of the public” and the alleged facts are proven to be true. Similarly, such acts are not punishable when they are committed with regard to “matters concerning a public employee or a candidate for election” and the alleged facts are true.

But there is no such exemption for the crime of insults, a fact that raises concerns.

If this crime is made punishable by a jail term, it would be easier for law enforcement authorities to arrest and investigate a suspect under a provision of the Code of Criminal Procedure.

Because of this, one key topic for the Diet deliberations on the bill is the approach to the investigation. But Satoshi Ninoyu, chief of the National Public Safety Commission, offers no reassurance, only saying there will be no “unjust oppression.”

The government-drafted bill should not be allowed to pass the Diet as is. A United Nations committee has taken a dim view of instituting a punishment that restricts freedom for any act of expression.

In light of the international trend, the government should start by introducing only a fine for bujokuzai and monitor the effectiveness of the measure.

The alternative bill submitted by the Constitutional Democratic Party of Japan would introduce a new provision for punishing people who have defamed another person for the purpose of causing damage to his or her character.

Malicious words, such as “I wish you would die,” cause serious damage to the person whom they are addressed to but do not necessarily constitute criminal insult. The opposition party’s proposal is designed to deal with the serious problem of rampant verbal attacks in cyberspace and the damage they cause to the targets. It is worth serious consideration.

It is also vital to establish an effective system to ensure that victims can swiftly receive judicial remedy through civil procedures.

Legal changes in recent years have made it easier to identify those who have posted malicious or defamatory statements online and seek compensation from them. But the process is costly and cumbersome and offers no effective way to seek remedy, according to experts.

An accumulation of cases where civil punishment is imposed on people for posting anonymous comments aimed at hurting others will lead to broad public recognition of the responsibility and serve as a deterrence.

We need to continue improving the way we tackle this challenge while trying to strike a proper balance between fighting the scourge of verbal abuse and protecting freedom of expression.

--The Asahi Shimbun, May 8