Like Japanese prank shows? Thank tort law!

Anyone who has gone too far down a YouTube rabbit hole of Japanese reality show clips might have found themselves staring into an abyss of human suffering. In one prank show, unsuspecting victims are ushered into an elevator only for the floor to give way, with victims falling down a slide as a studio audience howls with laughter. Victims’ screaming faces as they plunge to (what they believe will be) their deaths are shown in slow motion for the audience’s delight. In another clip, a woman dressed as a yūrei slowly emerges from the ceiling as men shower. Hilarity ensues. In a third, victims walking down the street suddenly find themselves in the middle of two armed gangs charging towards one another, and again must face the reality of their (perceived) impending death.*

Of course, that observation is not limited to reality television shows hailing from Japan. As a genre, reality shows trade in the small grotesqueries of human life: mean girls, humiliating challenges, and unhinged judges living out sadistic fantasies as they sample participants’ Hollandaise sauce.

And those cruelties have given rise to a not insignificant body of case law in some countries. In 2019, a landmark NSW Workers Compensation Commission ruling found that the reality show House Rules must pay compensation to a contestant who had suffered depression after being framed as the show’s villain. In the US, so many people sought to claim damages in tort — a legal action against another person for damages done to your body, income or emotional well-being — have forced shows such as Jackass off air. Indeed, as law students will know the founding case for the action wilful infliction of nervous shock (the only available tort action for emotional harm in Australia, where you must prove psychiatric injury) involves a prank gone awry.**

Assuming they are real then,*** Japanese prank shows are something of a novelty. Whereas most participants in reality shows will be asked to sign forms releasing the show from liability in the case of injury, the premise of a prank show is that the victim doesn’t know what’s coming. The show, therefore, has less opportunity to protect themselves.

In some jurisdictions — like the US — claimants would have an action for intentionally inflicted emotional distress. Indeed, the decline of American pranks shows like Scare Tactics and Punk’d appears in large part due to the costs of prank victims bringing lawsuits, many of which are likely settled out of court. Such expenses discourage companies from insuring such shows, meaning many cannot go ahead at all.

Though in Japan such actions exist in theory, the potential payouts are often prohibitively low for claimants. Compared to Australia or the US, judges in Japan have a far wider discretion in ordering payouts for damages in tort. Payouts generally are much lower, with claims for defamation — which frequently sees damages orders of hundreds of thousands of dollars in other jurisdictions — averaging at around $1 million JPY ($13,000 AUD).

Given generally lower damages, and wide discretion from judges, lawyers are discouraged from pursuing claims for emotional distress. With less claims being brought, there is less clarity on the standards that must be met to prove such claims, placing heavy burdens on lawyers to prove them. This creates a “vicious cycle” of low damages orders for emotional distress, economist Osamu Saito argues. “[B]ecause judges can freely determine the amount lawyers do not know if their request is going to be granted even if they advocate for it, and even if their request is granted the amount is usually low and the burden on the lawyer is very heavy, therefore, they do not press for the emotional pains of the victim too strongly, and because of that their understanding of this type of pain diminishes, as a result the amount in non-economic losses cases has stayed low,” Saito writes.

Ultimately, a system that privileges the mental or emotional well-being of individuals is simply incompatible with good prank shows. Does this mean we should rehaul our tort law regime? Probably not. Should we nevertheless be thankful that there are still safe havens for extreme pranking, made accessible in the internet’s ether? Definitely.

* Not directly relevant to this article, but always worth mentioning, is also Orgasm Wars, where gay porn performers are challenged to make consenting straight porn performers ejaculate within 40 minutes.

** Wilkinson v Downton involved a man pranking a woman by telling her that her husband was lying in the street with his legs broken. The facts of the case state her hair turned white, she vomited, and she went into “nervous shock”. Some chicks just can’t take a joke!

*** If they are not this entire article is pointless and wrong.