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«Stanford Technology Law Review E-Elections: Time for Japan to Embrace Online Campaigning MATTHEW J. WILSON ∗ CITE AS: 2011 STAN. TECH. L. REV. 4 ...»

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Matthew J. Wilson: E-Elections: Time for Japan to Embrace Online Campaigning 1

Stanford Technology Law Review

E-Elections: Time for Japan to Embrace

Online Campaigning

MATTHEW J. WILSON ∗

CITE AS: 2011 STAN. TECH. L. REV. 4

http://stlr.stanford.edu/pdf/wilson-e-elections .pdf

I. INTRODUCTION

1 Communication and social networks play a vital role in the modern world. The role and importance of social networks has been heightened by the advent of the Internet and the new “information age” in which modern society operates. The Internet has had a profound impact upon nearly every society, and it has increasingly assumed indispensable functions. Not only has the Internet changed the way that people communicate and network, but it is also one of the most powerful and far-reaching technological developments known to the world with respect to information exchange, education, business, and entertainment.

2 As the Internet has evolved, Internet users across the world have embraced various forms of online communication, social networking, and social media through their computers, mobile phones, smart phones, televisions, and even game consoles. Internet users spend significant time using “Web 2.0” technologies and other World Wide Web tools (collectively “Internet tools”) that enable interactive information sharing, user-centered design, collaboration, and a compilation of collective intelligence.1 Internet tools include communication platforms such as e-mail, instant messaging, online chatting, and texting. Internet tools also encompass commonly used Web 2.0 tools for social networking and online collaboration purposes (collectively “consumer-generated media” or “CGM”), including social media platforms such as blogs, podcasts, wikis, and online video sharing websites such YouTube,2 microblogging platforms such as Twitter,3 social networking websites such as Facebook,4 and virtual communities. Individuals of all ages and backgrounds expend significant time connecting, communicating, collaborating, and even entertaining themselves together with others through CGM and other Internet tools.

Associate Professor, University of Wyoming College of Law.

* Tim O’Reilly & John Battelle, Web Squared: Web 2.0 Five Years On (Web 2.0 Summit held Oct. 20-22, 2009), 1 http://www.web2summit.com/web2009/public/schedule/detail/10194.

2 YOUTUBE, http://www.youtube.com (last visited Nov. 20, 2010). Founded in February 2005, “YouTube provides a forum for people to connect, inform, and inspire others across the globe and acts as a distribution platform for original content creators and advertisers large and small.” YOUTUBE, http://www.youtube.com/t/about (last visited Nov. 20, 2010).

3 TWITTER, http://www.twitter.com (last visited Nov. 20, 2010). Twitter is a real-time information network powered by user-generated content from around the world. See TWITTER, http://twitter.com/about (last visited Nov. 20, 2010).

4 FACEBOOK, http://www.facebook.com (last visited Nov. 20, 2010). Millions of people use Facebook everyday to keep up with friends, upload photos, share Internet links and videos, and learn more about the people they meet. See FACEBOOK, http://www.facebook.com/facebook?v=info (last visited Nov. 20, 2010).

–  –  –

3 With their increasing popularity, CGM and other Internet tools have given rise to many complex legal and ethical issues ranging from enforceable online commercial obligations to personal rights on the Internet to digital criminal acts. From a commercial perspective, the law has reacted to the efforts of individuals, entities, and organizations reaching out to Internet and CGM users for profit.

Internet, technology, and information-based companies naturally rely upon the Internet and CGM to promote and deliver products, services, and information. Even the most conventional “brick and mortar” businesses have rushed to establish an online presence on both country native and global Web 2.0 platforms. On a personal level, individual rights and governmental interests often directly clash in an online environment due to the Internet’s speed, relative anonymity, and lack of regulation.

As Internet and CGM users electronically disseminate vast amounts of information, governments and individuals are subject to closer scrutiny, increasing criticism, embarrassing truths, rumors, and even harmful untruths. Communications circulated via the Internet can quickly spiral into public relations quagmires or even full-fledged political movements. Accordingly, lawmakers and courts are increasingly tempted to use the law to regulate the Internet and restrict CGM, often at the expense of individual rights. As such, the scope of individual privacy rights on the Internet and privacy obligations of website operators continues to generate much debate. Issues related to freedom of expression, voting, and censorship on the Internet give rise to substantial discussion as well.

4 Asia is no exception to the recent Internet phenomenon and ensuing legal dilemmas. In fact, Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. As of June 2010, China boasted over 420 million Internet users or “netizens.”5 Asians living in Hong Kong, Singapore, Taiwan, Thailand, and other parts of Asia are increasingly active on the Internet as well. In the digital age, many Asian societies have also embraced CGM and other online communication mediums. In Asian societies with Confucian traditions, conventional social networks have traditionally played a prominent role, particularly in comparison with Western nations.





This prominent role is increasingly translating itself into online platforms and forums.

5 With the rapid ascendency of the Internet and CGM, Asian countries have sometimes struggled with striking the proper balance between individual rights and Internet regulation. The intersection between freedom of expression and the Internet presents a prime example of such struggles.

Freedom of expression is a value shared across the world as reflected in Article 19 of the United Nations Universal Declaration of Human Rights (the “Declaration”), which states that “[e]veryone has the right to freedom of opinion and expression” including the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”6 Consistent with the Declaration, freedom of expression is protected in almost every Asian country, often through constitutional guarantees.7 However, the extent of freedom of expression differs greatly among Asian societies, particularly when analyzing the tremendous differences in Internet regulation among the countries.8 In principle, Communist and authoritarian states such as China, North Korea, and Vietnam are known for restricting Internet access and monitoring Internet users. Website operators and Internet users in these countries struggle with asserting individual rights and freely operating in a digital environment.9 Conversely, 5 CNNIC Says Chinese Internet Users Break 420 Million Mark, CHINA TECH NEWS.COM (July 16, 2010), http://www.chinatechnews.com/2010/07/16/12338-cnnic-says-chinese-internet-users-break-420-million-mark.

6 Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 at 71 (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/index.shtml#atop.

7 David Ziskind, Labor Provisions in Asian Constitutions, 6 COMP. LAB. L. 117, 165 (1984).

8 Id.

9 One prime example is Google’s struggle with Internet censorship in China. Tini Tran, China Renews Google’s Operating License, ASSOCIATED PRESS (July 11, 2010), http://abcnews.go.com/Business/wireStory?id=11136681. Another example is Vietnam’s intermittent blocking of access to social media such as Facebook. See James Hookway, In Vietnam, State ‘Friends’ You, WALL ST. J. (Oct. 4, 2010), available at http://online.wsj.com/article/SB10001424052748703305004575503561540612900.html?mod=wsj_share_twitter. In addition, Vietnam implemented regulations in April 2010 requiring that all retail Internet locations such as Internet cafes in the capital of Hanoi must install special government-approved software on their server computers by 2011. It is believed that this software will enable governmental monitoring and tracking of Internet and SNS use. Dorothy Chou, Disturbing Concerns in Vietnam (June 10, 2010, 1:41 PM), http://googlepublicpolicy.blogspot.com/2010/06/disturbing-concerns-in-vietnam.html.

Copyright © 2011 Stanford Technology Law Review. All Rights Reserved.

Matthew J. Wilson: E-Elections: Time for Japan to Embrace Online Campaigning 3 democratic countries such as Japan and South Korea generally subscribe to the principle of limited Internet restriction. However, this distinction is not always clear.

6 This article particularly focuses on the struggle of Japan to balance technological innovation, legal regulation, and individual rights. More specifically, it examines the conflict between Japan’s election laws and the desire of Japanese politicians, political parties, and voters to fully utilize the Internet’s capabilities to freely express themselves online during official election periods. Japan has interpreted its election laws to prohibit online campaigning and curb online voter activity during the official campaign period immediately preceding an election.10 As currently applied, Japan’s Public Offices Election Law or Koushoku Senkyo Hou (hereinafter the “POEL”)11 precludes candidates for public office and political parties from utilizing the communication, information, and political advocacy tools available on the Internet during the official election period.12 Instead, political candidates are mired in an environment restricted to a limited range of conventional campaign tools.

To campaign for political office, candidates spend countless hours posting small 33-inch by 23-inch posters on general election poster boards throughout their jurisdictions, parading around in campaign vans with loudspeakers blaring, and standing in crowded train stations or other public venues to give short political speeches and hand out a limited number of printed promotional materials.13 The POEL similarly hinders voter activity. Other than the act of voting, the POEL does not allow for significant voter involvement during the official campaign period. In actuality, it generally prohibits grassroots election efforts by voters including online activism, canvassing, and document circulation.14 7 The current interpretation of the POEL undermines political freedom and directly clashes with the desire of political actors to freely promote their ideals, disseminate policies, engage in political discussion, and gauge political currents via CGM and other Internet tools. It also hampers voters’ rights, voters’ participation in the political process, and grassroots activities. Accordingly, over the past several years, Japan’s strict POEL and campaign prohibitions have come under increasing fire from various sectors.15 While working to ensure the fairness of its elections, Japan needs to promptly embrace the Internet age and revise its electoral laws.

8 This article analyzes the need for Japan to relax or eliminate its strict Internet electioneering restrictions. To fully understand and evaluate the issues, Part II of this article provides a foundation by generally explaining Japan’s political structure, its electioneering laws, and the current online campaigning restrictions faced by candidates for public office, political parties, and voters. Part III of this article builds on this foundation by describing the failed attempts to relax or eliminate online campaigning restrictions. Part IV completes the discussion by analyzing the Internet’s potential role in Japanese elections, the legal clash between current campaigning restrictions and constitutionally guaranteed rights, and the future of online campaigning in Japan, including the various advantages that Japanese society can secure by embracing Internet electioneering and how Japan can employ existing law to overcome the potential dangers associated with online election-related activities.

10 See Koushoku Senkyo Hou [Public Office Election Law or “POEL”], Law No. 100 1950, as amended by Law No. 86 of 2007, available at http://law.e-gov.go.jp/htmldata/S25/S25HO100.html; see also Kosaku Narioka, The Last 20th-Century Campaign?, WALL ST. J. BLOG (June 14, 2010), http://blogs.wsj.com/japanrealtime/2010/06/14/the-last-20th-century-campaign/; Takaaki Ohta, Fairness Versus Freedom: Constitutional Implications of Internet Electioneering for Japan, 11 SOC. SCI. JAPAN J., no. 1, 2008, at 99, 106Koushoku Senkyo Hou [POEL], supra note 10.

12 Narioka, supra note 10; Christian Caryl, Fearing the Obama Effect: Japan Blocks Most Online Campaigning – But Insurgents are Starting to Push The Rules, NEWSWEEK (Oct. 25, 2008), http://www.newsweek.com/2008/10/24/fearing-the-obama-effect.html#.

13 Going Grassroots in Japan, THE WORLD (July 13, 2009), http://www.theworld.org/2009/07/13/going-grassroots-in-japan/.

14 See id.; Zenichiro Kono, Essay and Opinion: Citizens Have Right to Freely Campaign in Elections, JAPAN INSTITUTE OF CONSTITUTIONAL LAW (Feb. 18, 2008), http://www.jicl.jp/english/related/backnumber/20080512.html.

15 Ohta, supra note 10, at 102.

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