All questions

Free speech and media freedom

i Protected forms of expression

No freedom of expression is guaranteed without restriction, and forms of expression may be subject to reasonable and unavoidable restrictions for the purposes of public welfare.6 For example, there is opinion to the effect that the extent of the guarantee for sexual expression and commercial speech is weak under Article 21, Paragraph 1 of the Constitution, and judicial precedent that is friendly to this opinion exists.7

It is a widely held view that honour (the social evaluation of a particular person) and privacy (interest in one's private life not being disclosed without reason) are guaranteed under the Constitution, and there are judicial decisions friendly to this view.8

If an act of expression contains information that infringes honour or privacy, an issue arises as to the relationship between the potentially contradictory rights. The foregoing judicial decisions may be regarded as attempting to draw reasonable conclusions by carefully comparing the interests.

In this regard, the amendments to the Criminal Code to introduce prison terms as part of tougher penalties for insults9 became effective on 7 July 2022, marking a major step towards tackling online insults in Japan. However, the amendments have been controversial because of their alleged impact on freedom of expression.

ii Newsgathering

Judicial precedent holds that 'freedom of newsgathering for the press is worthy of full respect in light of the spirit of Article 21 of the Constitution'.10 Accordingly, it can be said that freedom of newsgathering is respected under the Constitution.

In a Supreme Court judgment of 12 June 2008, the issue arose as to whether news agencies must report as expected by news sources. In summary, the judgment found that news sources' expectations concerning a report are not legally protected in principle. However, if the act of newsgathering necessarily imposes a significant burden on a news source, news agencies should explain to the source the nature of any constraints on the content of the report, and the source should make decisions about the newsgathering taking account of the agency explanation. On this basis, the expectations of the source concerning the content of the report are legally protected.

The above judicial precedent is consistent with the view that it is not appropriate to broadly and legally protect the expectations of news sources regarding reports, because it is often necessary to report against the intentions of persons subject to newsgathering to satisfy the public interest in the news information.

iii Freedom of access to government information

Pursuant to the Information Disclosure Act or information disclosure ordinances, an individual (or news agency) may request the disclosure of documents prepared by officials of administrative agencies in the course of their duties. The administrative organ receiving such a request must disclose the documents under the Information Disclosure Act unless they constitute non-disclosable information (such as personal information, trade secrets or national secrets) under Article 5 of the Act on the principle on disclosure of administrative documents. In addition, information disclosure ordinances often define non-disclosable information similarly to the Information Disclosure Act.

In this regard, the administrative organ must make allegations and meet the burden of proof to establish that the requested documents constitute non-disclosable information.11 A judgment of the Tokyo District Court of 28 February 2006 ruled on a request for disclosure of information on administrative documents relating to secret funds for diplomatic purposes that the administrative organ had not met the burden of proof to establish that the relevant documents constituted non-disclosable information.

iv Protection of sourcesConcealment of news sources

Regarding the examination of witnesses in criminal cases, a Supreme Court judgment of 6 August 2015 held that whether a newspaper reporter has the right to refuse to testify is a question for the legislature and that no right to refuse to testify exists without legislation to this effect.

In respect of civil cases, however, a judgment of the Supreme Court of 3 October 2006 stated that:

  • whether a matter constitutes a secret for which testimony may be refused is determined by comparing the detriment that would arise from publication of the secret with the benefit of discovering the truth that would otherwise be sacrificed by refusing testimony and the fairness of a trial; and
  • as the concealment of news sources has an important social value in securing the freedom of newsgathering, a refusal to testify is permitted in principle, unless there are exceptional circumstances.

As discussed above, the framework as to whether there exists a right to refuse to testify differs between criminal and civil trials.

Compulsory submission of newsgathering materials

When newsgathering materials such as videos become subject to an order for submission to a court or are seized by a governmental agency, news sources might worry about their anonymity and, as a result, it might become more difficult for news agencies to conduct newsgathering activities.

Judicial precedents have held that orders to submit newsgathering materials may be permitted if the necessity of realising a fair criminal case is compared with the impact on freedom of the press and the former exceeds the latter.12

v Private action (injunction against publication)

The following types of private action can be taken to prevent publication: (1) injunctions against publication based on honour and personality rights; (2) injunctions against publication based on the Unfair Competition Prevention Act, Article 3, Paragraph 1 if the publication contains trade secrets; and (3) injunctions based on the Copyright Act, Article 112, Paragraph 1.

When deciding whether an injunction is to be issued against publication on the basis of honour and personality rights, as discussed above, the courts carefully compare the interest of freedom of expression with the interest of honour. In addition, when deciding whether the injunctions at points (2) and (3) above are to be issued, the court may conduct a comparison in the same way.

Subsequent actionClaim for damages

A person whose rights are infringed by publication (including any right under the Copyright Act) may claim damages.13

Article 723 of the Civil Code (Recovery in defamation)

In the case of defamation or damage to honour, an injured party may request the court to order a publisher to implement measures to restore their reputation or honour, such as an advertisement with a correction notice, in addition to compensation for damage.14

Article 115 of the Copyright Act: a request for measures to restore honour in cases of infringement of, inter alia, the moral rights of an author

If an author's moral rights are infringed by publication, an author may request appropriate measures to ensure that the author is identified as the author, or take appropriate measures to make revisions or to otherwise restore the author's honour or reputation.15

vi Government action against publication

A provisional injunction against publication can be issued by a court after a trial in cases in which a petition has been filed. This can be regarded as a restriction on freedom of expression by the courts against publishers.

On the question of whether an injunction against publication might be issued by a court order of provisional disposition, a Supreme Court judgment of 11 June 1986 held that:

  • as an injunction against publication by a court order of provisional disposition is a prior injunction against acts of expression, such an injunction may be permitted only under stringent and clear requirements;
  • a prior injunction concerning an act of expression such as an evaluation or criticism of a public official or candidate for public office may not be permitted in principle because it is generally a matter of public interest; and
  • a prior injunction may be permitted exceptionally if it is obvious that the content of the expression is neither true nor solely for a purpose of public interest and a petitioner for a provisional disposition is likely to suffer serious and irreparable damage.