Recap of UN Special Rapporteur on Freedom of Expression’s Mission to Japan

By Sanae Fujita

The UN Special Rapporteur on Freedom of Expression, David Kaye, conducted an official visit to Japan from 12 to19 April 2016. This blog presents a brief recap of the Rapporteur’s key findings relating to journalism in Japan, and notes allegations that the mission, and those assisting it, were subject to surveillance. 

Pressure on Media

One of the issues the Special Rapporteur considered related to media freedom. Recent events indicate that governmental pressure on the media in Japan has been increasing. For example, in February 2016, Sanae Takaichi, communication minister, officially stated that the Government may order a radio or TV station to stop broadcasting if it repeatedly airs programs that run counter to political impartiality. She cited Article 4 of the TV broadcasting law which lists principles broadcasters shall comply with, including political impartiality. She also invoked Article 76 of the law on radio broadcasting, which allows the communications minister to issue closure orders. Lawyers, however, consider Article 4 to be a rule of professional ethics that media houses should apply autonomously.

In addition, three famous news anchors, known for being critical of the authorities, had to leave their front-facing positions in March 2016. It is said that there was pressure from the Government and that none of them chose to leave voluntarily. This was not the first time that outspoken commentators resigned from their positions because of pressure from Government but that three news anchors left at the same time, together with the Takaichi statement, has been taken as a sign of a serious crises of independence in Japanese media. Articles published by numerous foreign media outlets confirmed the particularly harsh crackdown the media in Japan was facing.

The Rapporteur’s Preliminary observations

After hearing from many journalists, the Rapporteur warned that there is a threat to the independence of the media. ‘Numerous journalists, many agreeing to meet with me only on condition of anonymity to protect their livelihoods, highlighted the pressure to avoid sensitive areas of public interest. Many claimed to have been side-lined or silenced following indirect pressure from leading politicians.’ The Rapporteur highlighted problems with Article 4 of the broadcasting law and said ‘The Government should repeal [it] and get itself out of the media-regulation business’.

He also explained that although he requested that the Japanese Government arrange a meeting between him and Ms.Takaichi, this request was not granted. It is noted, however, that during parliamentary sessions, afternoons are allocated for meetings. It is difficult to believe that a meeting was impossible, particularly given the advance notice.

The Special Rapporteur also directed recommendations at the media itself. Japan has a ‘Kisya club’ (reporters’ club) system which is a Japanese news-gathering association of reporters from specific news organisations. Institutions with a Kisya club limit their press conferences to journalists of the club and limit access by freelance journalists, magazines, as well as foreign media. The Rapporteur suggested that this system hinders media independence, and undermines access to information. He recommended that the Kisya club system be abolished.

The Rapporteur also expressed concern about the Secrecy Act. He explained that, although he had a good discussion with government officials, his concern still remains, notably in that specific categories to define whether a matter can be designated ‘secret’ remain overly broad. The problems of the Act, including its broad and vague ground for secrecy, had already been criticised by the UN human rights bodies, prior to the mission by the Rapporteur.

The Act defines what can be designated as secret, and refers to defence, diplomacy, prevention of terrorism, and designated dangerous activities. Frank La Rue (the former Special Rapporteur on Freedom of Expression) and the Human Rights Committee both pointed out that the category was very broad and it was worrying when the penalty for disclosure of classified information was considered. For that conduct, the Act puts journalists and their sources at risk of facing penalties, under its Article 25, and it was pointed out that such provisions would have a chilling effect on media.

The Rapporteur expressed the same concerns. He highlighted that Government officials explained that it is not the intention to apply Article 25 to journalists, but noted that, if this is the case, then the law should be amended to eliminate any potential chilling effect.

The Rapporteur’s preliminary recommendations also include issues concerning the draft constitution. The Japanese constitution guarantees freedom of expression under Article 21. However, the Japanese leading party, LDP, intends to revise the whole constitution. Prime Minister Abe stated that he would like to start the process after the general election in July 2016. In 2012, LDP published a draft constitution which introduces restrictions to freedom of expression, providing that ‘engaging in activities with the purpose of damaging the public interest or public order, or associating with others for such purposes, shall not be recognized.’

The Rapporteur expressed concern with this sentence stating that it is inconsistent with Japan’s human rights obligation under Article 19 of ICCPR. The reference to damaging public interest and public order is extremely broad and fits uncomfortably with freedom of expression. This restriction can undermine a range of different areas, such as political campaigning.

The Rapporteur briefly mentioned his preliminary recommendation to Japan during his presentation in the Human Rights Council on 23 June. The Japanese Government replied and stated, it is regrettable that the explanation from the Government was not reflected properly in relation to the Rapporteur’s recommendation.

Surveillance of the Mission

Preliminary observations by the Special Rapporteur was covered by both Japanese and foreign media as well as individual blogs and social media. Many commentators also quoted it in their talks.

On 21 May, just over a month after the UN mission, a Japanese magazine FACTA published an article claiming that a few individuals closely assisting the Rapporteur’s mission were under serious surveillance. Based on leaked memos, this article explains that the Deputy Chief Cabinet Secretary ordered members of the Cabinet Intelligence and Research Office to monitor individuals assisting Rapporteur’s mission.

One of them was a director of Human Rights Now, a Tokyo based human rights NGO. In response to an inquiry from her, the Ministry of Foreign Affairs denied the claim, although FACTA confirmed the article was true. She requested a journalist of FACTA further information about the memo and found the contents of memos proved that these individuals were seriously tailed and monitored by the Japanese Government. UN Secretary General Reprisal Report includes this fact. If that is true, this is inconsistent with human rights obligations of the State. Surveillance of the UN mission is clearly a breach of manners which UN member countries should respect.

Disclaimer: The views expressed herein are the author(s) alone.

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