A steady stream of court battles pitting Japan's corporate and political elite against its leading weekly magazines has riveted attention on the nation's ability to balance protection of privacy with the freedom of expression. Major magazine publishers say privacy laws passed last year are really implemented to control the media. Politicians and others who find themselves on the receiving end of the investigative reporting in Japan's magazines say they go too far in delving into people's private lives and ought to maintain higher standards. Aggrieved parties often resort to legal action. Yet publishers of smaller magazines are raising an even more pressing issue. They contend that while leading publishers and public figures duke it out in courts, small, independent media outlets are being silenced by lawsuits. Too often, they say, the high-minded debates about freedom of expression don't trickle down to their level. "The mass media is often called 'the fourth estate' because of its role as a watchdog in a liberal democracy, revealing injustice and protecting people's rights," says Futoshi Ogi, editor in chief of the opinion monthly Kiroku. "I would like to believe in this, but in reality, it only applies to big media. Smaller media often find that they are smaller than the corporations they are writing about. In recent years, I have seen so many cases in which small media have been sued by big corporations that often have the financial capability to inflict huge damage." In the year through August 2003, Japan's courts handed down 53 rulings where news organizations had to pay fines for defamation of character, according to the National Council to Promote Mass Media Ethics, a nonprofit organization in Tokyo. Magazine publishers were involved in 32 of these cases, newspapers or wire services were implicated in 17, and broadcasters in four. Typically, lawsuits are filed by celebrities, politicians and business leaders who feel their privacy has been violated. Rarely are newspapers the focus of these lawsuits because of Japan's peculiar media makeup: While the major newspapers tend to stay away from salacious stories and at times practice self-censorship when reporting on the private lives of high-profile figures, weekly and monthly magazines and "sports" newspapers combine a paparazzi element with hard-hitting journalism. The recent case of politicians missing their pension payments sheds light on the way the media work in Japan: After both Chief Cabinet Secretary Yasuo Fukuda and Democratic Party of Japan leader Naoto Kan resigned because they had missed pension payments in the past, Prime Minister Junichiro Koizumi said he had never missed a payment. Few, if any, newspaper reporters questioned him about the claim. But the prime minister had to backtrack in the middle of May and admit that he actually had missed some payments long ago. Koizumi's admission came just before a weekly magazine, Shukan Post, published a story about the premier's missing payments.
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"Privacy laws ... are essentially ?media regulation laws.? We should be debating their existence. Otherwise, we are just pawns in the government's game plan." -- Hajime Aoki, editor of Gendai |
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Fines handed down by the courts for infringing on someone's privacy are typically much less than they would be in the United States -- in just seven cases did publishers have to pay 5 million yen (about $45,500) or more in the year through August 2003, according to the media ethics council. The highest fine for invading someone's privacy is 19.8 million yen ($180,000 at current exchange rates), handed down in 2003 against Shinchosha, publisher of the now defunct weekly magazine Focus."Even damages of 10 million yen (about $91,000) are enough to crush a magazine entirely," Ogi says. "Legal costs, including hiring a reasonable lawyer, present an extra burden, even if the publisher wins the case. Magazine publishers often get scared of getting sued, and big corporations know that, too. So, they tend to ask for a lot more than they think they can get." Other publishers agree: Lawsuits against magazines often stifle those publications even when the magazines win. Expenses for lawyers and the time spent fighting a suit can cripple a magazine with a small staff and limited funds. Politician's daughter fights "tabloid" Take the case of Shukan Bunshun, a widely read weekly magazine that was sued by the family of politician and former Foreign Minister Makiko Tanaka over an article about the eldest daughter's failed marriage. While the magazine eventually won the case, the road to that "win" created a chill the publishing world still feels.
The Tanakas sued Shukan Bunshun's parent, Bungeishunju, on March 16 over a magazine piece that related through mostly anonymous sources the breakup of the daughter's marriage in its first year. It told of Makiko?s opposition to the marriage, the testy relationship between the in-laws, and it shared a few anecdotes from unnamed co-workers of the daughter and her ex, both employees of Nikkei Shimbun Inc.Shukan Bunshun runs articles by some of Japan's top essayists and often has deep, thought-provoking articles on the issues of the day. But the piece on the Tanaka daughter fits more to the standard of The National Enquirer or one of the other American supermarket tabloids: All the key sources are anonymous, much of the reporting is speculative, and the headlines hype the news of the breakup as a "scoop." The Tanaka family sued to stop distribution of the magazine. In the late afternoon of March 16, both sides appeared in Tokyo District Court to argue their case. There, Bungeishunju took the unusual step of making advanced copies of the magazine available to the Tanakas and the judge. At that point, according to a report in Shukan Asahi, Makiko Tanaka began going through the article, exclaiming: "That's a lie. There's another lie. You're writing all these lies!" The court decided later that evening to issue a temporary injunction against the magazine. The injunction ordered a ban on the "sales, free distribution or transfer to third parties" of the magazine in question. Bunshun supporters say the decision seemed very rushed -- the order to halt distribution, for example, misspelled the magazine's name, according to Shukan Asahi. Bunshun, which had already distributed 740,000 copies of the issue, stopped distributing the remaining 30,000, calling the court ruling "a day of humiliation for magazine journalism."
This sentiment was seconded by major publishers throughout Japan. "These are the preliminary steps to stifle publishing and news," the Japan Magazine Publishers' Association said in a statement. "In fact, this can only be called censorship."
Because the court's ban applied only to publishers, not to retailers, the magazine continued to be sold in some bookstores, although the kiosks at Japan's rail stations halted sales. Bungeishunju filed an objection with the court on March 17, arguing that the article contained information in the public interest, but the objection was rejected two days later. A three-judge panel issued the following statement: "Once an invasion of privacy occurs through the spread of information to outsiders, it is impossible to recover." The magazine publisher appealed the decision to the Tokyo High Court, where the decision to halt distribution was overturned March 31. But even the high court's decision seemed tempered with a distaste for Bunshun's reporting. "Prior injunction of a publication is a serious limitation on freedom of expression, and utmost caution should be exercised in granting it," the court said, adding a sharp rebuke of the Bunshun article: "The article in question cannot be assessed positively as a product of exercising the right to freedom of expression guaranteed by the Constitution." New laws vague on magazine restrictions The Tanaka family has vowed to follow up with more legal action on this case. Bunshun and other large-circulation magazines have said they will battle what they see as out-and-out censorship and a climate that is more hostile to media outlets, thanks to new privacy laws passed last year that strengthen the plaintiffs' hands in these cases. The new privacy laws, passed in May 2003, force corporations to deal with personal information in a more transparent way. Any company collecting personal information must notify the person whose data is being collected, for example, and must explain why the data is being collected. Companies are also forbidden from sending personal information to a third party without the individual's consent. The laws explicitly exempt newspapers and broadcasters from these restrictions when they are gathering news, but the situation for magazine publishers is murkier. Lawmakers say these publishers are exempt, but the publishers say the language is purposely vague. "These bad laws are simply named 'privacy laws,' but they are essentially 'media regulation laws,'" says Hajime Aoki, editor of the monthly Gendai magazine published by Kodansha. "We should be debating the existence of such a law. Otherwise, we are just pawns in the government's game plan." Aoki said the government arguments were deliberately ambiguous. These calls by big publishers to resist government censorship leave smaller publishers rolling their eyes. "To me, they're a laughing stock," Kiroku editor Ogi says of Shukan Bunshun's stance in the Tanaka case. "Big media never cares about what is happening to smaller media; they don't even write about (the lawsuits that affect smaller publications)." Aoki of Gendai says there's no sense worrying about the fate of smaller magazines. "Whatever the size of the publisher -- midsize or small -- if it's worth reporting, it shall be reported and that's that," he says. "There are some (lawsuits) that deserve to be brought to court and others that don't. What's important here is our judgment." Ogi, who has fought a lawsuit against his publication before, says stricter privacy laws and the increased threat of lawsuits combine to intimidate smaller publications because in Japan's court system "it?s the publisher's job to prove the story is correct." "(Lawsuits filed by) government offices are easier to handle because publishers know that they are unlikely to ask for unreasonable compensation," he says. "But smaller publishers are becoming more cautious about publishing news on big corporations out of fear."
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