June 2022 | Japan Media Watch
Revised anti-defamation law could suppress criticism of powerful figures
Philip Brasor and Masako Tsubuku
In an editorial published May 8, The Asahi Shimbun came out against a Diet bill submitted by the ruling Liberal Democratic Party (LDP) that would revise a law addressing bujokuzai, or "the crime of insults". As the newspaper explains, the bill is a response to "the proliferation of acts of insulting and disparaging others in social media," which was prompted by the suicide of professional wrestler Hana Kimura after she was the target of abuse on social media for her participation in the reality TV show Terrace House. Kimura's mother subsequently sued a man for disparaging her daughter on social media.
The current punishment for criminal insults made in public is a small fine. The revision would augment this penalty with possible imprisonment of up to a year and a steeper fine of up to ¥300,000. The Asahi points out that insults are legally distinct from defamation – an act of speech specifically seen as damaging a person's reputation – while the damage from insults is usually inflicted on the targeted person's feelings.
The current punishment for defamation is imprisonment of up to three years and a fine of up to ¥500,000. Defamation is not punishable if it involves "matters of public interest," is found to be for "the benefit of the people," or contains truthful information. Consequently, the law protects people from being sued by public figures, including politicians, who may interpret criticism as a form of defamation. However, the revision governing insults does not contain such provisions, so the police could investigate someone for insulting a public figure if they believe an applicable crime has been committed.
Opposition parties and media pundits have expressed concern that the revision could suppress free speech, since individuals who disagree with those in power about the way they wield that power might think twice about saying so in public for fear of being investigated for a possible criminal activity and then punished for it.
One of the reasons this fear is plausible is that even under current law, public criticism can draw the attention of law enforcement. In 2019, a man was detained by police in Sapporo after he heckled Shinzo Abe while the then prime minister was giving a speech outdoors. In March, the Hokkaido District Court ruled that the police action was improper and ordered Hokkaido Prefecture to pay the man ¥880,000 in compensation. The prefecture has appealed.
During lower house deliberations on the revision on April 27, opposition lawmaker Nobuko Kimura asked Satoshi Ninoyu, the chief of the National Public Safety Commission, if he thought the Hokkaido police were justified in detaining the man for expressing his opinion out loud during Abe's speech. Ninuyu replied that they were, since such speech can have a negative effect on politicians.
As the media review web magazine Litera explained, although the government has said that "fair criticism" will not be the target of the revision, deciding on what constitutes fair criticism is the job of government investigators, whose criteria for reaching such decisions isn't clear. When asked by Kimura if the phrase "the prime minister is a liar" qualifies as defamation, the chief of investigations for the justice ministry implied that it was, even if the gist of the defamatory speech is true. The House of Representatives Research Bureau determined that Abe supplied false information in the Diet between November 2019 and March 2020 a total of 118 times.
Earlier this year, the Constitutional Democratic Party of Japan (CDPJ) countered the revision with an alternative bill that would more specifically address attacks made on the internet for the purpose of causing harm to a person's character or reputation. On May 13, the LDP and the CDPJ reached an agreement to add a clause to the revision that would require, in three years’ time, a review of its effectiveness and whether its implementation had affected freedom of speech.
Such a review may not get to the heart of the matter, since a central element of speech suppression in Japan is the fear of being sued, meaning that reporters may try to avoid even the appearance of being critical. In the 2022 press freedom survey by Reporters Without Borders (RSF), Japan dropped from 67th to 71st place.. According to the RSF website, one of the reasons given for Japan's lower rating is that some Japanese journalists "have been prosecuted by politicians for as little as retweeting content deemed 'defamatory'".
A March 30 article on the website of Shukan Josei Prime described one example of how this pressure is applied, in this case in a suit brought by former Osaka governor, Hashimoto Toru, against lawmaker Oishi Akiko, a member of the Reiwa Shinsengumi party who once worked under Hashimoto as an Osaka public servant. Since becoming a Diet member, Oishi has emerged as one of the most persistent critics of Ishin no Kai, the party co-founded by Hashimoto that effectively runs Osaka city and prefecture. She told Shukan Josei Prime that Hashimoto's modus operandi is to "bully" the media to get his views across unencumbered, adding that the purpose of his suit was to intimidate Oishi so that she would stop criticizing Ishin. Hashimoto's complaint is based on an interview Oishi gave to the tabloid Nikkan Gendai, the co-defendant in the suit, in which she said Hashimoto uses a carrot-and-stick approach when dealing with the press. In addition to threatening to destroy a reporter or media outlet over negative coverage, he promises exclusive access for positive reporting.
Oishi is certain she will win, but such lawsuits are not necessarily premised on the expectation of victory in court. Sometimes, just filing the suit is enough. Oishi has a party behind her with the resources to fight it, but many individuals accused of defamation, even if they believe they will win, retract their allegedly defamatory speech because they can't afford a protracted court trial, and that includes journalists.
Such a reality was discussed by US-based movie writer and cultural critic Machiyama Tomohiro on the May 12 installment of the YouTube program of veteran comedian Suidobashi Hakase, who himself is currently the target of a defamation case. Machiyama explained to Suidobashi the concept of SLAPP procedures. SLAPP stands for Strategic Lawsuit Against Public Participation, and describes suits brought by powerful persons or organizations against individuals that have little legal merit but which prove to be either too professionally or too financially onerous for the individuals to fight. As Machiyama put it, SLAPP suits are regularly used by corporations and politicians to stop the proliferation of speech that is inconvenient to them. Because SLAPP suits can destroy careers, families, and even lives, 30 American states have outlawed them, and elsewhere in the U.S., judges reject them out of hand. But in Japan they are fairly common, and Machiyama thinks the defamation suit brought against Suidobashi by Matsui Ichiro, the mayor of Osaka and another member of Ishin, qualifies as SLAPP. Suidobashi's offense was retweeting a link to a YouTube video that criticized Matsui's governing style.
Machiyama says that the new insult law revision effectively codifies SLAPP. In addition to fighting the revision, he wants opposition parties to draft legislation outlawing SLAPP. Suidobashi, who recently announced he is running for a seat in the upper house this summer, said he wants to rally other comedians and entertainment figures to work together to promote such a law, but these days "other comedians don't want to work with me," since his jokes have become more political. In the past he often appeared on TV talk shows to discuss current events, but since being sued he has lost a good deal of work. In Japan, he says, just the hint of impropriety suggested by a legal action is taken as proof of guilt. Whenever the media reports that police have "sent documents to prosecutors" (shorui soken) regarding a case, the public assumes that the person the police were investigating has been indicted, but the police only investigate the matter and then send their findings to prosecutors, who then decide, based on the findings, whether to indict.
The point is that actual indictments or defeats in civil court are not necessary to punish or prevent speech that is critical of those in power. Often, just the fear of seeming guilty of defamation is enough, which is why, as Machiyama pointed out, most Japanese comedians punch down instead of up.
Philip Brasor is a Tokyo-based writer who covers entertainment, the Japanese media, and money issues. He writes the Japan Media Watch column for The Number 1 Shimbun.