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Spam is a borderless problem, but in Japan the problem has had its own unique flavor with spam sent to mobile phones constituting the bulk of the problem.  In the first half of FY 2004, spam sent to mobile phones constituted 73% of all spam, whereas spam sent to personal computers constituted the remaining 27%. [1]  In terms of content, 80% of spam were advertisements for matchmaking (dating) sites, 10% were advertisements for adult sites, and 10% were for all other content.[2] 

Regulations to combat such spam have evolved rapidly in Japan.  A large increase in spam sent to mobile phones gave rise to industry self-regulation in 2001 by mobile operators and, in 2002, two national laws were enacted to combat spam – the Law Concerning the Proper Transmission of Specified Electronic Mail ("2002 Anti-Spam Law") and the Law for the Partial Amendment to the Law Concerning Specified Commercial Transactions ("Revised Transactions Law").  On May 13, 2005, the Law for the Partial Amendment to the Law Concerning the Proper Transmission of Specified Electronic Mail went into effect (together with the 2002 Anti-Spam Law, the "Anti-Spam Law").  

The Ministry of Internal Affairs and Communication ("MIC"), which is in charge of regulating the telecommunications and broadcasting industry, enforces the Anti-Spam Law, and the Ministry of Economy, Trade and Industry ("METI"), which is in charge of regulating general commercial transactions, enforces the Revised Transactions Law.  The ministries have harmonized their implementing regulations, and in many cases the requirements overlap.  

The Anti-Spam Law applies to commercial emails sent by a Sender (as defined below) to an individual residing in Japan.[3]  Similarly, the Revised Transactions Law applies to email transactions with individuals residing in Japan.[4]  Thus, irrespective of where the organization or the individual sending the emails is located, if commercial emails are sent to residents of Japan, the rules described in this Alert are applicable (although there may be some enforcement issues as they relate to foreign organizations or individuals who send commercial emails).

Below we outline the basic requirements of the Anti-Spam Law and the Revised Transactions Law for businesses that send commercial emails to individuals residing in Japan.   

The Anti-Spam Law

The Anti-Spam Law is applicable to "Senders" (for-profit organizations and individuals engaged in business) of commercial emails except to:  1) those who have requested or consented to receive such emails; 2) those who are in a business relationship with the party whose product or service is being advertised or promoted in the emails; or 3) other persons or businesses as specified by law or ordinance.  Emails sent by Senders as described above are referred to as "Specified Electronic Mail."  Before the recent amendment of the Anti-Spam Law, the law only applied to commercial emails sent by Senders to private-use addresses.  The amended Anti-Spam Law applies to commercial emails sent to business-use addresses as well. 

There are three basic requirements under the Anti-Spam Law: 1) requirement to honor opt-out requests; 2) labeling requirements; and 3) prohibition against sending email using programs that generate fictitious e-mail addresses.

Honoring Opt-Outs 

Senders are prohibited from sending Specified Electronic Mail to those from whom Senders have received requests not to receive such emails.[5]  Even if the recipients consented before to receiving such emails, if they subsequently request to unsubscribe, the Sender must honor the opt-out request.  There is no "grace period" for complying with such a request. 

Labeling Requirements 

Senders must label Specific Electronic Mail in the following manner:[6]

• Indicate in the subject line that the email is an "Unsolicited Advertisement";
• Indicate at the top of the message section the following: 
• • The word "Sender," followed by the name of the Sender;
  • The email address used to send the email; and
  • That the recipient may request to unsubscribe from such emails from the Sender, and an email address to which the recipient may send such requests; and
• Indicate anywhere in the message, or provide a website link to, the following information:
• • The Sender’s address and telephone number; and
  • Information regarding the transmission path of the email.

Fictitious Email Addresses

Senders may not send emails to fictitious email addresses that have been generated using a program that automatically combines symbols, letters and numbers that can be used in email addresses.[7]  This was a requirement that was added in the recent amendment to the Anti-Spam Law.  Fictitious emails include blank emails which attempt to obtain active addresses or disguised e-mails, such as those apparently from friends of the recipient.  Senders must also not disguise or fake the email address used to send the Specified Electronic Mail or the symbols, letters or numbers that identify the electronic communication device or facility used to send the email. 

Penalties in the Case of Violation

In the case of a violation of the above obligations, the Minister of MIC shall order the Sender to take measures to improve its email transmission methods.  The Sender may be subject to a penalty of ¥500,000 or less for a violation of such an order. 

The Minister of MIC may also require Senders to submit reports to the extent necessary to implement the Anti-Spam Law, and may also inspect the Sender’s premises, books and other documents.  The Sender may be subject to a penalty of ¥300,000 or less for refusal to submit such reports. 

In April 2004, MIC issued an administrative order against a company called SIS World Company, for not complying with the labeling requirements of the Anti-Spam Law.  SIS World Company did not provide the accurate label to indicate that the email was an "unsolicited advertisement" in the subject line and did not provide the name of the Sender in the text.  MIC has issued three such administrative orders against companies for violation of the Anti-Spam Law, and the companies have complied with the orders, and avoided further penalties.

The Anti-Spam Law also authorizes telecommunication carriers not to provide e-mail transmission services if e-mails include fictitious addresses, and contains provisions regarding businesses that have been appointed by the Minister of MIC to assist the Minister in collecting information, investigating and providing advice regarding measures to be taken in the case that Senders do not comply with their obligations under the Anti-Spam Law. 

The Revised Transactions Law

The Revised Transactions Law is a consumer protection law applicable to businesses and individuals engaged in certain types of transactions who advertise certain products, rights or services to consumers ("Marketers").  The certain types of transactions regulated under this law are those transactions that are conducted by receiving applications by mail, phone, fax, or other communication device or information-processing machine, telegram or deposit into a bank account from consumers who have seen or received advertisements in the newspaper, magazines, television, websites, direct mail or email.[8]  The certain products, rights or services that are subject to the Revised Transactions Law have been set by ordinance, and include things such as: jewelry, cosmetics, clothes, books, DVDs, cameras, bath and kitchen fixtures, rights to use sports facilities, services such as dating services, weight loss programs, landscape and home improvements, etc.[9]  It also includes services such as "recording a program onto a file in a computer" and "providing, revising, adding or deleting information relating to personal information recorded in a name list, directory, etc." [10]  The Revised Transactions Law specifically exempts certain transactions, such as transactions between businesses, transactions between a Marketer and a person residing outside Japan, transactions with a Marketer which is a governmental entity, etc.[11]

The basic requirements for email Marketers under the Revised Transactions Law mirror the requirements under the Anti-Spam Law to a large extent.  Like the Anti-Spam Law, there is a requirement to honor opt-outs as well as labeling requirements.   Unlike the Anti-Spam Law, the Revised Transactions Law also regulates the substance of the advertisement itself.  In addition, penalties for corporations that do not comply with the requirements under this law are more severe.

Honoring Opt-Outs 

Marketers are prohibited from sending emails that advertise services or products ("Commercial Emails") to those from whom the Marketers have received requests not to receive such Commercial Emails.   As with the Anti-Spam Law, there is no "grace period" for complying with such a request.

Labeling Requirements

Commercial Emails must indicate the following information in the email[12]:

• Indicate in the subject line that the email is an "unsolicited advertisement";
• Indicate in the top of the message the following: 
• • The word "Marketer," followed by the name of the Marketer;
  • Email address used to send the email; and
  • That the recipient may request to unsubscribe from such emails from the Marketer, and an email address to which the recipient may send such requests; and
• Indicate anywhere in the message, or provide a website link to, the following information:
• • Terms of sale or service and other information required pursuant to ministerial ordinance

Emails regulated under the Revised Transactions Law may also be regulated under the Anti-Spam Law.  When a "Marketer" is also a "Sender", METI has indicated that the emails should indicate both "Marketer" and "Sender" at the top of the message.  If the "Marketer" and the "Sender" are different entities, both entities must be indicated separately under each label.[13]

Substantive Restrictions

Other restrictions on Marketers applicable to Commercial Emails:

• Marketers may not make false or exaggerated statements regarding the advertised product or service in an advertisement;[14] and
• Marketers may not engage in acts that cause a consumer to enter into a contract against his or her will. [15]  In particular, Marketers must: 
• • indicate clearly when a certain operation on a computer, such as clicking, will result in an application to enter into a contract (so-called "one-click trick"); and
  • make it easy for the consumer to confirm and revise any application to enter into a contract through a certain operation using a computer such as by clicking. 

Penalties in Case of Violation

In the case of a violation of the above obligations, there is a two-step punishment system.  The first step is an administrative order (guidance order or business suspension order) by METI.[16]  If a Marketer violates a guidance order, it may be subject to a penalty of ¥1,000,000 or less.  If a Marketer that is not a corporation violates a business suspension order, it may be subject to a penalty of ¥3,000,000 or less and/or imprisonment of two years or less.[17]  If a Marketer that is a corporation violates a business suspension order, it may be subject to penalties of ¥300,000,000 or less.[18] 

Conclusion

There is also the "shame" factor.  Although METI is required to make public the names of companies or individuals that have become subject to business suspension orders,[19] since February 2002, METI established a policy to make public those who become subject to guidance orders as well, in order to strengthen enforcement of the Revised Transactions Law.[20]  In June 2005, S.K.I., Ltd. and Asian Oasis, Ltd. became the first "spammers" to become subject to business suspension orders pursuant to the Revised Transactions Law.[21]       

Companies that are experienced in complying with the U.S. CAN-SPAM Act of 2003 ("CAN-SPAM Act") will notice that some of the requirements under the Japanese anti-spam laws are similar, such as the opt-out requirement, and prohibition against false or misleading header information.  While the Japanese Anti-Spam Law and the CAN-SPAM Act exclude transactional or relationship messages from coverage, under the Revised Transactions Law, such messages may be regulated if the transaction in question is one of the enumerated kinds of transactions regulated under that law from the perspective of consumer protection.   Companies marketing or advertising using email in Japan should review their practices carefully in light of these laws.