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A responsible attitude needed toward ‘privacy’

by Philip Brasor

Everybody knows what they mean when they say “privacy,” but when it’s used in a legal context the word turns squishy and slippery. For instance, it’s difficult to grasp why Barbra Streisand sued a photographer last year for invasion of privacy because her estate appeared in two aerial pictures he took of the California coastline for an environmental study.

Babs lost. She’s been a celebrity so long that privacy battles have become a kind of reflex action. A more calculated action was at work on March 16 when the daughter of politician Makiko Tanaka won an injunction against Shukan Bunshun for printing an article about her divorce, which she claimed was a violation of her privacy. The Tokyo District Court ordered Bunshun to stop shipment of the magazine the morning it went on sale.

The copies that made it to stores sold like hot cakes, so rather than prevent the public from reading about her divorce, Tanaka’s daughter made sure that everyone did. But the real purpose of the complaint was for Makiko Tanaka to call Bunshun’s bluff.

Anyone hoping for some juicy scandal was disappointed. The article said very little about the daughter, her ex-husband, or their yearlong union. It mainly talked about how Makiko Tanaka was against the marriage. Bunshun has been a thorn in Tanaka’s side for years and the article was just another dig. Seeing an opening, she struck back and succeeded. Last Wednesday, the Tokyo High Court revoked the injunction on appeal, thus leading to a tit-for-tat appeal from Tanaka.

The case had already become the focal point of a debate about privacy vs. freedom of the press. Bunshun enlisted journalist Takashi Tachibana, who wrote a book about the Lockheed bribery scandal involving Makiko’s father, the late Prime Minister Kakuei Tanaka, to discuss the case in its April 1 issue. Tachibana doesn’t buy the magazine’s claim that the daughter has the “potential” to become a politician and is therefore a public figure and subject to press scrutiny. But he foresaw the higher court’s opinion that the injunction was constitutionally dangerous.

Tachibana pointed out that the Constitution “respects” an individual’s right to privacy, but “guarantees” freedom of speech. The latter has greater weight than the former, and cases where one concept is pitted against the other require careful deliberation. In order for a judge to halt the publication of a magazine on grounds of privacy violation, he must prove that violation “objectively,” and not simply based on the plaintiff’s “subjective” claims. In the case under consideration, a single judge made his decision based on “procedure,” not deliberation, thus becoming in effect a one-man censorship board.

One of the legal precedents for the injunction is the case two years ago when a judge prevented the publication of the novel “Ishi ni Oyogu Sakana” by Miri Yu. An acquaintance of the writer claimed that a character in the book was based on herself and that the description caused her mental anguish. The Tokyo High Court revoked the injunction against Bunshun because, while it said that the article did violate the privacy of Tanaka’s daughter, it did not cause “irrecoverable damage” to her. The acquaintance in the Yu case could claim irrecoverable damage because the description is unflattering, some say cruel, but the High Court said Tanaka’s daughter can’t because a divorce is no big deal.

Tachibana says that privacy is not clearly “demarcated” in Japan and therefore it often collides with other rights. There is, in fact, no Japanese-language equivalent to the word “privacy,” which is why the English word is used. Like “human rights,” “privacy” has become a buzz word and its meaning is twisted to accommodate whatever personal agenda the user wants to promote. The Yu case is particularly troublesome because the book in question is a work of fiction. The offended party, who remains anonymous, claims her rights have been violated even though her real name is not used in the book and she is not a famous person whom readers might recognize from the description.

“Privacy” can be used in this way as a legal obstacle to the workings of a free press and to freedom of expression in general. What’s needed is not a legal definition of privacy, which is impossible, but a more mature and realistic understanding of media responsibility by the public, the media itself, and even legal institutions.

Such an understanding still seems fleeting. A week after the injunction, the same lawyer who filed the Tanaka complaint warned Bunshun’s main rival, Shukan Shincho, that an article it was about to print about Masaoki Nagashima, the second son of baseball legend Shigeo Nagashima, was a violation of his privacy and therefore illegal.

The article, which Shincho went ahead and published, was about a woman who accused Nagashima and a friend of sexual battery. Apparently, before the woman filed a civil suit, Nagashima apologized to her in writing in front of a lawyer. In court, however, he said he did not commit sexual battery and that the apology was false. He only fixed his seal to it to keep his famous name and his famous family out of the spotlight. “The court understands [Nagashima's] position,” said the judge before dismissing the case.

It’s difficult to decide which is more ludicrous: Nagashima’s claim that he is celebrity enough to lie on a legal document, or his lawyer’s claim that he is not celebrity enough to prevent him from suing Shincho for violating his privacy. Even Barbra Streisand would scratch her head.