/

State secrecy bill could have a chilling effect on reporting

by Lawrence Repeta

SPECIAL TO THE JAPAN TIMES

The state secrecy bill before the Diet could have a powerful chilling effect on news reporting in Japan. Prior LDP governments have repeatedly proposed laws creating broad secrecy powers, but dropped them in the face of popular opposition. The current bill has been condemned by news organizations, ad hoc groups of university professors, the national federation of bar associations, labor unions and other citizen groups, and even by United Nations special rapporteurs and some international organizations like the PEN Club.

Why all the fuss? This brief article will attempt to describe potential application to news reporting if the bill becomes law.

The proposal by Prime Minister Shinzo Abe would grant officials broad new powers to designate information “special secret” and therefore inaccessible to news reporters, scholars and anyone else who does not hold a government security clearance. This new authority applies to four categories of information: defense, international relations, anti-terrorism, and measures to counter actions to obtain any among a wide range of sensitive information on behalf of a foreign power.

The government promises to develop future guidelines to assist in defining the outer boundaries of this secrecy power. Of course, we don’t know what such guidelines might say. But the most fundamental problem is that designations would not be subject to any independent review, so actual knowledge of the range of information placed out of bounds would be limited to insiders with access.

Secrecy would be enforced in two ways. First, by the threat of criminal prosecution against anyone accused of leaking designated information, with maximum prison time of 10 years per incident. Second, by potential prosecution of news reporters or others who may act inappropriately in their efforts to uncover designated information.

The bill does not protect whistleblowers who may uncover corruption, threats to public health or the environment, or otherwise act to serve a public interest. Disclosing any material labeled “secret,” for whatever reason, would be a violation of the law. Moreover, in future prosecutions, the government would not be required to prove that the release caused any actual injury to a government interest. Demonstrating that the leaked information is labeled “secret” would be enough to secure a conviction.

The bill also threatens prosecution of anyone accused of “instigating” or “inciting” a leak or of “collusion” that results in the leak of designated information. These offenses would be subject to a maximum five-year prison term. Potential violators of this rule include news reporters, actual foreign spies, members of the Diet or anyone else who employs some inappropriate means to persuade officials to release designated information.

News reporters? In democratic societies, we all rely on the news media to investigate and report stories of public interest. We honor reporters who uncover important stories as heroes. Japan’s Constitution expressly guarantees “freedom of the press.” Is it possible that news reporters might be prosecuted under this law?

Article 21 of the bill addresses “news-gathering activities” (shuzai koi), describing as “appropriate” those acts that “mainly have the purpose of serving a public interest, to the extent they do not constitute violations of law or employ exceptionally inappropriate means.”

Good reporters often persist in efforts to pry information loose from sources, including government sources. At what point does laudable persistence cross the line to become unlawful “inappropriate means?” When Abe administration spokesperson Masako Mori was asked at a press conference to provide a concrete example of “inappropriate means,” she was ready with an answer: the Nishiyama case. She did not explain, immediately departing after making this comment, ostensibly called back to duties on the Diet floor.

Mori had referred to the 1970s prosecution of Mainichi Shimbun reporter Takichi Nishiyama for actions related to his scoop that exposed a secret agreement between Japan and the United States concerning the 1972 “reversion” of Okinawa to Japan. Nishiyama was arrested in 1972 and charged with improperly instigating the leak of confidential documents through his personal relationship with a female employee of the Ministry of Foreign Affairs.

Citing constitutional protection for the press and the lack of any actual injury caused by the disclosure, the Tokyo District Court judged the reporter not guilty. But the acquittal was overturned on appeal and the conviction upheld by a 1978 decision of the Supreme Court. Japan’s highest court confirmed that news reporters can be charged and convicted for use of “inappropriate means” in news gathering.

According to an old adage, “one punishment delivers one hundred threats” (“ichibatsu hyakku-kai“). After his arrest, Nishiyama lost his job and any hope of employment as a news reporter. Anyone who accuses Japan’s reporters of lack of zeal in exposing government misdeeds should consider the chilling effect of his fate.

Mori presented the Nishiyama case as one example of actions the government may consider “inappropriate” and therefore grounds for prosecution. For other examples, we must use our imaginations.

I imagine that even if the secrecy bill is passed into law, major Japanese news media will continue to report on defense, foreign relations and other topics covered by the secrecy protection bill. Of course, they may rely more heavily on official government statements. What about the aggressive reporter who makes a scoop that uncovers information designated “secret?” If the story is published, a series of events may follow.

There may be a phone call or a visit from the prosecutor’s office. The reporter and her superiors may be called in for an interview. They may find it hard to protect the identity of the source. Prosecutors will be bound to examine the reporter’s methods. If they pass muster, prosecutors may decide the prohibition against “inciting” or “instigating” leaks does not apply and the reporter should go free. Of course, they could decide otherwise.

Legal counsel for every news organization will advise reporters to tread very carefully when investigating any matter related to the four broad categories of secret information. Management may decide it is wise to devote more resources to sports, the entertainment world, and other areas clearly outside the purview of officials who wield the secrecy power.

Through the diligent work of researchers at the U.S. National Archives, today we know that Nishiyama did uncover a government lie and that there were many secret agreements (mitsuyaku) related to the reversion of Okinawa. But successive LDP governments continued to deny their existence until the party lost control to the Democratic Party of Japan in 2009. Requests for this information under Japan’s disclosure law have been met with the response that “no documents exist.” (bunsho fusonzai) Apparently, the documents were all destroyed.

The proposed secrecy bill is only one of many LDP attacks on freedom of the press. Most prominently, the Liberal Democratic Party would revise the Constitution to limit freedom of speech and press; the LDP version would exclude protection for those “engaging in activities with the purpose of damaging the public interest or public order, or associating with others for such purposes.” Like the expression “inappropriate means,” the terms “public interest or public order” are undefined.

But it’s quite hard to change the Constitution. It’s never been done. On the other hand, with comfortable majorities in both houses of the Diet, Abe and his colleagues are in position to pass laws like the secrecy bill that can achieve many of the same goals.

Lawrence Repeta is professor at the faculty of law at Meiji University.