The Law and Business of Social Media
June 12, 2013 - Asia

The Diet Has Spoken: Japanese Lawmakers Approve Internet-Enabled Campaigning

The Diet Has Spoken: Japanese Lawmakers Approve Internet-Enabled Campaigning

In February 2013, we reported on legislative momentum in the Japanese Diet to bring Japan’s sixty-year-old election laws into the brave new world of Web 2.0. On April 19, 2013, that reform effort came to fruition, when a bill permitting the use of the Internet during election campaign periods passed both Houses of the legislature—just in time for the upcoming Upper House poll in July.

The debate revolved around Article 142 of the Public Offices Election Law (POEL), which imposes strict regulations on campaign activities during the two- to three-week “official campaign period” leading up to each national, prefectural and municipal election (also known informally as the “blackout” period). Specifically, Article 142 prohibits the dissemination of “documents and drawings” for electioneering purposes during the blackout period (with limited exceptions), a restriction that until now has been consistently interpreted to prohibit Internet-based electioneering activities altogether. Indeed, Article 142 has been understood to prohibit even the general public from participating in online election-related activities, activities synonymous with many popular grassroots campaign efforts in the United States and elsewhere.

These somewhat antiquated restrictions are now largely part of the past. The amended Article 142 permits candidates for political office, political parties and members of the general public (both Japanese and non-Japanese) to utilize a range of online tools for electioneering activities during the official campaign period, ushering in a new era of net senkyo (the buzzword for Internet-enabled campaigning). The potential benefits for candidates and political parties include inexpensive, twenty-four hour access to constituents, and the freedom to depart from the narrow range of permissible activities that define the current mode of electioneering in Japan: train station stump speeches, pamphlet distribution and showering passersby with megaphoned sound bites from officially sanctioned campaign vans. Another purpose of the legislation was, reportedly, to energize Japan’s infamously “apathetic” youth vote.

Essentially, the amended law divides the universe of online tools into websites and similar services (including blogs and social networking services (SNS)), on the one hand, and electronic mail, on the other. At least with respect to websites and similar services, the old restrictions have largely been dissolved: candidates, political parties and members of the general public are now permitted to update their websites, blogs and social network profiles with election-related activities during the official campaign period, and to engage in direct advocacy and solicitation of votes over the Web.

The specific inclusion of SNS among the types of services for which restrictions have been largely relaxed is crucial, given that SNS carry the greatest potential for political innovation under the net senkyo regime. SNS, of course, have been a major force in American politics for a number of years, and Japanese politicians have themselves flocked to services such as Facebook, YouTube and Twitter for conducting non-campaign-related activities outside the blackout period. However, the prospect of engaging in real-time and (theoretically) two-way communications with candidates for political office during the crucial period when voters are most attuned to the issues could represent a breakthrough for Japanese democracy, as Professor Matthew Wilson forcefully argued in 2011.

The relaxation of the POEL’s restrictions on online electioneering has already impacted Internet technologies based in Japan. Naver, developers of the Japanese homegrown messaging app “Line”—which has surpassed 150 million users worldwide and 45 million users in Japan alone—announced in May 2013 that ten political parties opened official Line accounts in the wake of the POEL amendment. The political parties reportedly hope to use Line to facilitate direct communications with supporters and solicit comments and feedback in real time, in addition to broadcasting news and information to followers using a more traditional one-to-many model.

On the other hand, the Diet has maintained much tighter regulation of the general public’s use of electronic mail (as opposed to websites, SNS and similar services). Although the POEL now permits parties and candidates to use electronic mail for electioneering purposes, lawmakers decided to preserve existing restrictions on voters’ use of campaign-related electronic mail, or to at least postpone resolution of the issue to a later date, in an apparent response to fears of “negative campaigning,” defamation, spoofing, identity theft and spam. As a result, the general public is still prohibited from sending electronic mails for election-related purposes during the blackout period—including from mobile phone-associated electronic mail accounts, which are widely used in Japan.

This creates an interesting tension: although a member of the general public may be free to use Facebook to express support for his or her favorite candidate, sending an electronic mail message containing the same content would continue to be off limits under the POEL. As many have observed, this leads to counterintuitive results, whereby someone who forwards to his or her friends a candidate’s official campaign electronic mail blast may potentially be liable for a fine (up to JPY500,000) or imprisonment (up to two years) and face disenfranchisement, while someone who simply copies and pastes the same information into a Facebook message would probably not run afoul of the POEL.

There is some skepticism amidst the excitement around net senkyo. According to a survey conducted jointly by the Sankei Shimbun and Fuji News Network, 56.8% of respondents said that they would not use online campaign information to inform their voting choices, while only 39.3% said that they would. (On the other hand, among voters in their twenties, the number of respondents expressing affirmative interest jumped to 62.7%. This bodes well for the effort to remobilize Japan’s youth vote, which reportedly was one of the original drivers of POEL reform.)

Further, anxiety over the twin threats of narisumashi, or identity theft, and defamation has not abated, and both Internet service providers and law enforcement authorities are already preparing for potential hiccups in the upcoming election cycle. Given the prevalence of Internet-enabled negative campaigning in other countries (for example, in Korea during 2012), it may be reasonable to worry about the downsides of the net senkyo revolution. However, as Professor Wilson has pointed out, the threat of fraud and other bad acts is omnipresent even outside any “official campaign period,” and both traditional law, such as the law of defamation, and technology itself—e.g., direct verification of accounts on Facebook and Twitter—can help mitigate these risks. SNS and similar technologies may even empower politicians to respond to false assertions more quickly and effectively.

Even though the amended Article 142 has become law in Japan, there is no way to predict the extent of its impact on Japanese political culture. But the surging popularity of SNS platforms and other mobile and online communications platforms makes it clear that net senkyo will impact the way Japanese citizens interact with political actors and political information in a lasting way.