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FOCUS March 2018 Volume 91

Japan and Media: Some Issues

HURIGHTS OSAKA

The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression discussed the situation of the media and freedom of expression in Japan in the “advance unedited version” of his report dated 29 May 2017.1 The Japanese government submitted its comments on the special rapporteur’s report on 30 May 2017.2

During the 15th Meeting, 35th Regular Session of the Human Rights Council held on 12 June 2017, the Special Rapporteur (Mr David Kaye) gave a short report on his visit to Japan in April 2017. He emphasized three recommendations: 3

First, the Broadcast Act lodges authority to regulate the broadcast media in the Ministry of Internal Affairs and Communications. Global standards promote independent regulation. And I encourage the government to move in that direction. As it stands, the authority of the government to suspend broadcast licenses on grounds of fairness, even if the government has never taken advantage of that authority, prevents a certain measure of risk for any broadcaster, one that government would do well to remove.

Second, the government should take steps to ensure broad access to information. The press club system or kisha system according to it journalists must be part of a club in order to attend department briefings represents a limitation to information by encouraging access journalism and discouraging tough-minded investigative reporting and they exclude independent voices.

Third, it is important for journalists themselves to find ways to [develop] general professional solidarity and for the government to encourage this. This is very difficult because of the way the Japanese employment is structured such that journalists like others in Japanese professions are first employees of companies and only secondly journalists. But it is crucial and the report documents examples where journalistic solidarity did not exist and facilitated restrictions and pressures on the media.

The representative of the government of Japan (Mr Junichi Hara) gave a response on the media independence issue. He stressed that4

[T]he Constitution of Japan fully guarantees freedom of expression and the right to know. The government officials have not put pressure on journalists, illegally and wrongfully, and neither were there any cases in which the operation suspension order [based on] the Broadcast Act [was applied]. The Act does not give rise to any pressure on the media.

The three issues mentioned by the Special Rapporteur are discussed below.

The Broadcast Media
The Special Rapporteur noted that the Broadcast Act of Japan5 “recognizes the principle of broadcast media independence” as stated in Article 3, “Broadcast programs shall not be interfered with or regulated by any person except in cases pursuant to the authority provided for in laws.”  In addition, the Radio Act6 regulates both public and commercial broadcasters. 

He reported that the Broadcasting Ethics and Program Improvement Organization (BPO) was “created in order to implement self-regulation, thereby avoiding government interference.” 

The Japan Broadcasting Corporation (NHK) and the Japan Commercial Broadcasters Association (JBA) established the BPO as “a non-profit, non-governmental organization that serves to improve the quality of broadcasting and promote higher ethical standards while ensuring freedom of speech and expression.”7 BPO has a Broadcast and Human Rights/Other Related Rights Committee that 

investigates complaints filed by those who claim that their “human rights have been infringed upon” and determines “whether human rights have been violated” or “whether broadcast ethics problems exist”. The results are given as a “Committee Decision” which is notified to both the complainant and the broadcaster, and then publicly announced. (Established in 1997)

The Special Rapporteur explained that under “international standards, broadcast regulation should be conducted by an independent third-party actor, but the Broadcast Act, which regulates both the public Japan Broadcasting Corporation (NHK) and commercial broadcasters, lodges authority over them in the Ministry of Internal Affairs and Communications.” He cited Article 174 of the Broadcast Act which states: 

If the broadcaster (excluding terrestrial basic broadcasters) has violated this Act or an order or disposition based on this Act, the Minister of Internal Affairs and Communications shall set a period within three months and shall order the suspension of the operations of the broadcasting.

He also cited Article 76 of the Radio Act that “gives the Minister of Internal Affairs and Communications the power to suspend business operations of television and radio broadcasters for violations of the Broadcast Act or Radio Act.” 

He then observed that while “substantive norms within the law promote autonomy and independence, this institutional framework creates the possibility of a regulatory environment that could result in undue restrictions on media freedom and independence.” He further explained that 

media regulation in Japan is not legally independent of government, in particular not from the political party in power at any given moment. It is in the interests of the Government, the parties, and most importantly the people of Japan that this system be remedied and independent regulation replace the current system.

Similar to the point he raised at the 15th Meeting, 35th Regular Session Human Rights Council (12 June 2017), he noted that the  

… lack of an independent media regulator does not pose merely hypothetical problems for the broadcast sector. The possibility of government interference based on content or affiliation – even if never sought in the government’s past – looms as a potential risk for the media, possibly deterring investigations that could run afoul of political sensitivities. 

He explained that this 

concern was raised time and again during the Special Rapporteur’s visit. Repeatedly, media professionals and academic and civil society observers raised a concern that the Broadcast Act mixes elements of ethical obligation with non-independent government power. Some saw official statements as making this concern valid, while some representatives from private media associations expressed the view that they do not perceive or fear pressure from the Government. 

He reported that the Japanese “Government assured the Special Rapporteur that broadcasters are to comply with the Broadcast Act independently and autonomously, yet also maintained that as the ministry with jurisdiction over the Broadcast Act, the Ministry of Internal Affairs and Communications may lawfully apply the Act to suspend business operations of broadcasters.”

The Special Rapporteur noted that “there is a real tension in lodging government with the power to regulate broadcast media while at the same time emphasizing that broadcasters act independent of government pressure.”

The Japanese government responded to this view by stating that the 

… Ministry of Internal Affairs  and Communications, has  continued to take the view  that the suspension of the  operations of broadcasting in  accordance with Article 174  of the Broadcast Act or the  suspension of the operation of  radio stations in accordance  with Article 76 of the Radio Act in the case that a broadcast was made in violation of Paragraph 1,  Article 4 of the Broadcast Act should apply only in very  limited circumstances, complying with all the following conditions. 
(a) It is clear that a broadcast in violation of the provisions of the laws was aired. 
(b) Furthermore, the broadcast harmed public interests and it was contrary to the purpose of the Broadcast  Act, and it is necessary to  prevent the recurrence of  such a broadcast in the future. 
(c) In addition to the above  conditions, the same  broadcaster repeats a  similar act, the broadcaster’s measures to  prevent the cause and  recurrence of such a  broadcast are insufficient,   and the self-regulation of   the broadcaster is not   expected to ensure broadcasting in compliance with the laws. 

Ministry of Internal Affairs and Communications has continued to maintain the opinion that this provision  should be administered with  very careful consideration,  and successive Ministers for  Internal Affairs and  Communications have made  remarks  in  line  with Ministry of Internal Affairs and Communications’s conventional view, as well.

The Special Rapporteur explained that the professional norms laid down in the Broadcast Act8 were “fair expectations that should be considered central to ethical journalism worldwide.” 

He asserted that a 

non-independent Government agency should not be in the position of determining what is fair. This is a matter for public debate and self-regulation through such institutions as the BPO or, if deemed appropriate, an independent regulator evaluating clear terms and requirements that meet Article 19(3) standards.9 Generally speaking, the Special Rapporteur believes that official Government evaluation of such broadly stated norms would lead to deterrence of the media’s freedom to serve as a watchdog, if it is not already creating such disincentives to reporting.

He further explained that while the “Government has never suspended a broadcast license on the basis of programming content under Article 4, concern among media professionals has been rising along with the increase in publicly stated Government concern with the substance and tone of reporting within the Japanese media.” He cited instances off-the-record remarks of government officials (specially the one from the Chief Cabinet Secretary) that threaten the media. He summarized the main problem in this manner:

Here is the crux of the problem: if the Government were not in control of the broadcast regulatory framework, the Chief Cabinet Secretary’s statement may have less force. But in the context of government regulatory control, government criticism can reasonably be understood by the media to involve inappropriate pressure. Given the weaknesses of the media described below, such pressure, in this context, may be unreasonable.

Independent Media
The Special Rapporteur noted the lack of “strong, independent, secure and cohesive media” in Japan. He defined a strong and independent media as having “dynamic elements of competition but bound by common sets of ethical and behavioral norms [and] would easily be able to stand up to the kinds of pressures described above.” Lacking such “characteristics as a group, even minor forms of pressure may create an outsized sense of crisis, even if some individual journalists buck the trends.”

He attributed this situation in part to the

nature of employment in the media and the way journalists (and other professionals across the Japanese economy) are unionized. Journalists are employed by large media empires, and they tend to remain with their companies – and direct their loyalty toward them – for decades, often entire careers. They may be removed from one position as a journalist and transferred to non-journalistic roles in the company. Union representation happens only within company level.

He explained that the “very structure of media employment in Japan can affect efforts to withstand pressure from government or to develop cross-outlet solidarity among journalists.”

Illustrating this point, the Special Rapporteur reported the following:

33. One of the striking features of the visit was the fact that most of the journalists with whom the Special Rapporteur met requested confidentiality to speak about the situation they believe they face. They expressed fear that management would retaliate against them for raising their voices, particularly in the absence of an independent body to protect them. And yet no broad union of journalists brings together mainstream and freelance reporters, limiting the possibility of solidarity and advocacy and shared purpose. Nor does any press council independently self-regulate across all areas of journalism. 

He also cited as among the “key factors undermining the media’s unity and ability to gather information in the public interest … the so-called “Kisha club” system:”

35. The Kisha clubs establish a norm of access and exclusion typically limited to specific organizations of the media to the detriment of freelance and online journalism and foreign journalists. For example, some journalists claimed that police press conferences are particularly inaccessible to non Kisha club members, with concerns being expressed even by lawyers on the disproportionate control that these clubs may have on information on certain cases and on the informal proximity developed between law enforcement authorities and journalists belonging to the club, possibly interfering in the outcome of court cases. Additionally, media business groups organized around Japan’s national newspapers ensure that other news outlets, especially television broadcasting, are brought into the Kisha club system and follow its news gathering and reporting rules. Each of the nation’s five national commercial television networks is tied to a major national daily. This limits the number of participants in the marketplace of information. 

The comments of the Japanese government (A/HRC/35/22/Add.5) to the report of the Special Rapporteur do not discuss the Kisha club issue.

Conclusions and Recommendations
The Special Rapporteur recommended the review of the “current legal framework governing the broadcast media and, in particular,” … “review and repeal Article 4 of the Broadcast Act in order to strengthen media independence by removing the legal basis for government interference.” Also, the Special Rapporteur “strongly urge[d] the Government to develop the framework for an independent regulator of the broadcast media.”

He called on “authorities and media groups to publicly express their rejection of any form of threat and intimidation against journalists or other professionals carrying out investigative reporting work.” 

He also called upon “journalists associations to discuss the impact of the current kisha system and for all in a position of responsibility to, at the least, broaden the membership to allow the widest possible range of journalists to participate.” 

He further called on the journalists to “assess how the promotion of independent reporting could be furthered by the promotion of associations among professionals working in multiple media.” 

Endnotes
1 A/HRC/35/22/Add.1, 29 May 2017. Full text available at
www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx
2 A/HRC/35/22/Add.5
3 UN Web TV, Item:3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development - 15th Plenary Meeting, 35th Regular Session of the Human Rights Council,
http://webtv.un.org/watch/id-sr-on-freedom-of-expression-15th-meeting-35th-regular-session-human-rights-council/5468752878001?lan=arabic.
4 Japan (concerned country), Mr. Junichi Ihara,
http://webtv.un.org/watch/id-sr-on-freedom-of-expression-15th-meeting-35th-regular-session-human-rights-council/5468752878001?lan=arabic#.
5 Text of Broadcast Act available at
www.soumu.go.jp/main_sosiki/joho_tsusin/eng/Resources/laws/pdf/0902045.pdf.
6 Text of the Radio Act available at
www.soumu.go.jp/main_sosiki/joho_tsusin/eng/Resources/laws/2003RL.pdf.
7 The Broadcasting Ethics & Program Improvement Organization (BPO),
www.bpo.gr.jp/?page_id=1092.
8 He cited the following professional norms in Article 4 of the Broadcast Act providing that broadcasters “not harm public safety or good morals,” “be politically fair,” “not distort the facts,” and “clarify the points at issue from as many angles as possible.”
9 This refers to the third paragraph of Article 19 of the International Covenant on Civil and Political Rights.


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