Labor IssuesLawyer-Reviewed
Q.A screenshot of my Slack DM badmouthing a colleague was spread company-wide and I was disciplined. DMs aren't "public," right?
A.
A one-to-one DM is usually not "public", so criminal defamation or insult is unlikely. But discipline under the work rules is possible, and an excessive penalty may be void.
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A one-to-one direct message is usually not made "publicly", which both criminal defamation and criminal insult require. "Publicly" means in a state where an unspecified or large number of people can perceive it. However, the Supreme Court has upheld a defamation conviction where statements made to a few people were likely to spread, so a DM is not automatically safe. And even where no crime is committed, conduct that falls within a disciplinary ground in the work rules can be disciplined. Discipline that is too harsh may be void as an abuse of rights (Labour Contracts Act, Article 15).
Situations where this comes up
- You criticised a boss or colleague in a DM on the company chat tool, and the recipient's screenshot spread around the office.
- You received a reprimand, pay cut or suspension because of the DM.
- As HR, you have received a screenshot of a DM and are unsure whether, and how severely, to discipline.
- The colleague who was criticised has asked the company to take action.
Criminal defamation, insult and "publicly"
Defamation is committed by "publicly alleging facts and thereby damaging the reputation of another" (Penal Code, Article 230). Insult is committed by "publicly insulting another" without alleging facts (Article 231). The Ministry of Justice explains "publicly" as a state where an unspecified or large number of people can perceive it.
A one-to-one DM is normally a message to one specific person, so in many cases it will not be "public".
However, the Supreme Court has upheld a defamation conviction where the accused made statements to a few specific people when asked, and a rumour then spread widely, finding that facts had been alleged in a state where an unspecified number of people could learn of them (Supreme Court, 7 May 1959, Keishu Vol. 13 No. 5, p. 641). Depending on the recipient, the content and the circumstances, a DM may be found to have been likely to spread.
Civil liability (damages)
The colleague may also claim damages in tort. Even where the message does not lower their social reputation, harm to their personal sense of honour can be an issue.
In a case about disclosure of the identity of the author of an online forum post, the Supreme Court held that where an insulting expression only harms a person's sense of honour, infringement of their personal interests can be recognised only if it is an insult exceeding what is socially acceptable (Supreme Court, 13 April 2010, Minshu Vol. 64 No. 3, p. 758). The wording, how often it was repeated and who saw it all matter.
When discipline is valid
To discipline an employee, the employer must set out the types of discipline and the grounds for them in its work rules in advance, and the work rules are binding only if they have been made known to employees (Supreme Court, 10 October 2003, Fuji Kosan case).
Discipline is void as an abuse of rights if, in light of the nature and manner of the employee's conduct and other circumstances, it lacks objectively reasonable grounds and is not considered appropriate in general social terms (Labour Contracts Act, Article 15).
For DMs criticising colleagues, the points usually examined are:
- whether the work rules list grounds such as disrupting workplace order or damaging other employees' reputation;
- what was said and how often: a one-off complaint or persistent abuse;
- the impact on work, such as the colleague falling ill or the team's work being disrupted;
- the severity of the penalty compared with past cases and whether the employee is remorseful;
- procedure, including whether the employee was given a chance to explain.
The lack of "publicity" does not prevent discipline: a criminal offence and a breach of workplace rules are separate questions. On the other hand, how far the content of private exchanges can be disciplined depends on the work rules and the link to work, and views can differ.
The employer reading DMs and the spread of screenshots
A business chat tool is provided by the company, but how far the company may check the content of DMs depends heavily on how its internal rules define the scope and purpose of monitoring. Reading DMs without such rules can lead to a separate dispute.
Spreading the screenshot around the office can itself be a workplace-order issue. HR should look into how the screenshot spread, not only at the employee who wrote the message.
What you can do now
If you have been disciplined:
- Obtain the written notice of discipline and check the reason and the work-rule provision relied on.
- Read the work rules and check that the disciplinary ground and type of penalty are set out.
- Note down the full DM, when it was sent, your relationship with the recipient and how it spread.
- Record whether you were given a chance to explain and what you said.
If you are in HR:
- Check the disciplinary grounds in the work rules and how they were made known to employees.
- Establish the original DM and how it spread, and hear both the sender and the colleague concerned.
- Compare the proposed penalty with past cases to check it is proportionate.
- Put in place internal rules on monitoring the chat tool.
When to speak to a lawyer
- A serious penalty such as suspension, demotion, dismissal on advice to resign (yushi kaiko) or disciplinary dismissal has been imposed or is being considered.
- The colleague who was criticised is talking about claiming damages from the company or the sender, or going to the police.
- The work-rule provision relied on is unclear, or it is unclear whether the rules were made known to employees.
- Other employees' conduct, such as spreading the screenshot, has also become an issue.
Frequently asked questions
Q. Is a DM criticising someone never a crime?
A. A one-to-one DM is usually not "public", but depending on the recipient and circumstances it may be found to have been likely to spread (see the Supreme Court judgment of 7 May 1959). Depending on the content, other offences can also be relevant.
Q. Can I be disciplined if the work rules do not mention "badmouthing"?
A. Discipline requires the types of discipline and the grounds to be set out in the work rules. Whether the conduct falls within a general ground such as "disrupting workplace order" is often the issue, so the wording of the rules must be compared with what was done.
Q. What can I do if the penalty seems too harsh?
A. Discipline that lacks objectively reasonable grounds and is not socially appropriate is void (Labour Contracts Act, Article 15). Gather the notice, the work rules and the DM, and consult a lawyer early.
This article provides general legal information and does not constitute legal advice. For specific legal issues, please consult with a qualified attorney.
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