"Specificity" (Toshiyuki KUWABARA)
This discussion is not about the "specificity" that occurs in Article 401, Paragraph 2 of the Civil Code, which talks about the concentration of the object of a type of obligation, relieving the debtor from the obligation to procure further. Rather, it is about the word "specificity."
On May 10, the amendment to the Provider Liability Limitation Act (officially titled the "Act on Limitation of Liability for Damages of Specified Telecommunications Service Providers and Disclosure of Sender Information")[1] was passed and enacted.[2] With the amendment, the name was also changed to the "Act on the Handling of Rights Infringement, etc., Arising from the Distribution of Information via Specified Telecommunications."[3] While discussions from the perspective of intellectual property law have also been conducted regarding the Provider Liability Limitation Act,[4] this article focuses on the peripheral issue of the word "specificity."
The term "specified telecommunications"[5] under the Provider Liability Limitation Act (which, after the amendment, is referred to as the "Act on the Handling of Rights Infringement, etc., Arising from the Distribution of Information via Specified Telecommunications") is defined in Article 2, Paragraph 1 as "transmissions of telecommunications intended to be received by unspecified persons... (excluding telecommunications intended to be directly received by the public)." Telecommunications [6] include web pages, social media, electronic bulletin boards, and similar platforms on the Internet. Since the definition specifies "intended to be received by unspecified persons," one-on-one communications, like emails, are excluded, and broadcasts are also excluded due to a parenthetical clause. However, telecommunications targeting unspecified large audiences are included, making the term "specified" quite broad.
The recent amendment establishes a system requiring "1) faster response and 2) concrete measures for transparency in the operational status of large-scale platform operators."[7] This means that the Act now includes rules for large-scale platforms (legally referred to as "large-scale specified telecommunications service providers") in addition to the existing regulations on the limitation of liability and disclosure of sender information for providers (legally referred to as "specified telecommunications service providers").
This situation is already quite complicated, but we must not forget the "Act on Improving Transparency and Fairness in Digital Platform Transactions" (DPF Act) when discussing platform transparency. As detailed on the Ministry of Economy, Trade, and Industry's website[8], the DPF Act designates operators providing platforms with a high need for increased transparency and fairness in transactions as "specified digital platform providers," who are then subject to regulation. Here, the term "specified" refers to platforms designated as the target of regulation.
Hearing the word "specific," one might vaguely imagine a subset within a larger group, but there is a significant difference in image between "specified telecommunications service providers" and "specified digital platforms." The former could include individuals managing a simple electronic bulletin board or a blog with comment sections, while the latter involves a few large-scale businesses (as announced on the Ministry of Economy, Trade, and Industry's website referenced in Note 8). In the Act on the Handling of Rights Infringement, etc., Arising from the Distribution of Information via Specified Telecommunications, the term "large-scale specified telecommunications service providers" is used to refer to large-scale businesses, unlike the DPF Act, which uses the term "specified" in a different sense. The discrepancy in terminology between the two laws, despite addressing similar issues of regulating large-scale platforms for proper and transparent behavior, can be confusing (it wasn't a concern before because the content of regulations in the Provider Liability Limitation Act and the DPF Act was sufficiently different, but now that they are closely related in terms of "regulation of large-scale platforms," the divergent terminology may be causing some dissonance).
In any case, when encountering the term "specified" in "specified xx," it is necessary to consider whether it refers to a quantitative subset or something qualitatively different. In the field of information law, including intellectual property law, the term "specified xx" seems to be quite common. In this field, things move quickly, and when a concept arises and special regulations are needed for a subset, one might resort to naming it "specified xx" due to difficulty in coming up with a more focused name. When designing systems, the focus should be on the content of concepts and system design, rather than on naming. "Specified xx" is a value-neutral term, so except for the difficulty in visualizing it, it should be relatively easy to persuade relevant parties. However, it is up to the reader to pay attention to ensure that they don't misinterpret the intended image.[9]
Lastly, having mentioned that "specified xx" might be common in information law, including intellectual property law, I decided to do a little research. I looked into laws using the term "specified xx" in e-laws to see how many belong to the field of intellectual property and information law.
Given the notion that societal digitization has progressed since the 1970s, with legal responses becoming more active around the 1980s, I looked into laws (including amended laws) since 1980 that use the term "specified xx."
To search for "specified xx," I simply used "specified" as a keyword, as including just "specified xx" might also bring in unrelated terms, such as those referring to "specific" in the Civil Code mentioned at the beginning. The phrase "specified xx" generally appears with definitions like "in this law, 'specified xx' means..." or with parentheticals like "hereinafter referred to as 'specified xx'." This should help identify most laws using the term. There were about 400 in total. Of these, around 30 pertain to intellectual property and information law (as selected by the author). The list of laws is included in the notes,[10] and it appears that the number is less than 10% of the total, contrary to my initial expectation. However, there may be cases where a law references "specified xx" defined in another law, and issues such as omissions or duplications could arise. Also, it may be more appropriate to compare based on the number of terms rather than the number of laws. Given the context of this column, I hope this brief exploration is excusable.
In any case, the term "specified" is likely to continue being used in legal terminology in the future, so I intend to read such terms without preconceived notions.
(Toshiyuki Kuwabara)
[1] https://www.soumu.go.jp/menu_hourei/k_houan.html
[2] https://www.sangiin.go.jp/japanese/joho1/kousei/gian/213/meisai/m213080213034.htm
[3] It seems that the common name of the law is often reported as the Information Distribution Platform Act (the Information Pla Act) from the conventional "Provider Liability Restriction Act" (or the "Provider Liability Restriction Act").
https://japan.cnet.com/article/35219058
https://japan.cnet.com/article/35219058
https://www.itmedia.co.jp/new/articles/2403/01/news170.html
[4] For instance, various studies have been conducted by Professor Kazuyuki Tanigawa. This year, Kazuyuki Tanigawa's Act on the Provision of Links and Copyright (2024, Hongbundo) was also published.
[5] For a clause-by-clause explanation by the drafting authority, refer to the Ministry of Internal Affairs and Communications' Telecommunications Bureau, Consumer Affairs Division II, "Provider Liability Limitation Act, 3rd Edition" (2022, Daiichi Hoki). However, as mentioned in the main text, the amended law has been passed and enacted, and it appears that a review is currently being considered from the perspective of addressing so-called fake and misleading information. Refer to the Ministry of Internal Affairs and Communications' page on the "Study Group on Ensuring the Soundness of Information Distribution in Digital Spaces."
https://www.soumu.go.jp/main_sosiki/kenkyu/digital_space/index.html
Furthermore, in response to the so-called issue of celebrity impersonation in advertisements, the Liberal Democratic Party issued a proposal on May 28 titled "Recommendations for Measures Against Social Media-Based Investment Fraud Using Fake Celebrity Advertisements." In the section on "Medium to Long-term Measures," there is a statement about "considering responses (regarding transparency in advertisements) after reviewing the implementation status of the Information Distribution Platform Law." This suggests that there may be legal amendments from this perspective as well.
https://www.jimin.jp/news/policy/208421.html
Even though the amended law has just been passed, the possibility of another review from two different directions is quite challenging.
[6] This definition is provided in Article 2, Paragraph 1 of the Telecommunications Business Act, which states, "The transmission, conveyance, or reception of codes, sounds, or images by wire, wireless, or other electromagnetic means."
[7] Bill for the Partial Amendment of the Act on the Limitation of Liability for Damages of Specific Telecommunications Service Providers and Disclosure of Sender Information.
https://www.soumu.go.jp/main_content/000931474.pdf
[8]https://www.meti.go.jp/policy/mono_info_service/digitalplatform/provider.html
[9] Over 10 years ago, I remember being quite surprised when I learned that "specific personal information" referred to personal information that includes My Number (the Japanese social security and tax number). Indeed, among the many concepts of "personal information," My Number is a specific type, so conceptually it is accurate. However, honestly, it is difficult to imagine just from the term. The current Personal Information Protection Commission was previously called the "Specific Personal Information Protection Commission," but it seems that very few people could understand from the name that it was responsible for the My Number law.
[10] The following items (including those without established common names and those with abbreviations unknown to the author) are listed with their full legal names: Telecommunications Business Law, Act on Special Measures Concerning Procedures Related to Industrial Property Rights, Unfair Competition Prevention Act, Act on the Promotion of Technology Transfer from Universities and Other Research Institutions to Private Enterprises, Plant Variety Protection Act, National Archives of Japan Act, Act on Prohibition of Unauthorized Computer Access, Act on Wiretapping, Patent Attorney Act, Electronic Signature Act, Act on the Limitation of Liability for Damages of Specific Telecommunications Service Providers, Act on the Regulation of Specified Electronic Mail, Act on the Certification Business of Local Government Information System Organizations Concerning Electronic Signatures, etc., Special Measures Act on the Management and Transmission of Information for the Identification of Cattle, Act on Electronic Book-Entry Transferable Bonds, Act on the Promotion of Internet Environment for Youth, Payment Services Act, Public Records Management Act, My Number Act, Act on Cancer Registration, Act on the Protection of Specially Designated Secrets, Act on Electronic Power of Attorney, Digital Procedures Act, Act on the Promotion of Information Processing, Act on the Promotion of 5G, Act on Specified Digital Platforms (DPF Act), Copyright Act, Act on Smooth Use of Telephones by the Hearing Impaired, etc., and Broadcast Act.