From NHK, an offer you can't refuse

State broadcaster's approach to separating the public from its money is legally and ethically troublesome

by Colin P.A. Jones

Special To The Japan Times

The only time I have ever had to deal with a yakuza professionally, he was waving a contract. He appeared at the office with his white shoes and I-am-a-gangster hairstyle claiming that several years ago, my company had joined a corporate-tax study association. The membership agreement stipulated that payment was required for the seminars offered by the group whether anyone attended them or not. He had come to collect the millions of yen in course fees that were supposedly overdue.

This goodfella was able to produce a bit of paper purporting to be a membership application emblazoned with the company’s seal. At the time, somebody might have thought it was a good idea to keep abreast of taxes, but nobody ever actually went to the seminars — who wants to hear about corporate taxes after working at a corporation all day? Anyway, the application contained language agreeing to be bound by the terms of membership. These terms were contained in a separate document, one that we were now seeing, doubtless for the first time.

Fortunately, this hood was not a very bright extortionist. Despite claiming monies due under a supposedly valid business contract, he had not bothered to bring an invoice. In fact, he wasn’t even clear about exactly how much money we owed. So we sat in a conference room for a spell while he threatened us with multiplication.

“Twenty-four seminars at ¥30,000 each and 12 special seminars at ¥60,000.”

“OK, but what’s the total amount?”

“An elementary school student could figure it out!”

“Great, so what’s the total again? Does it include taxes?”

In retrospect, it was kind of fun. (Helpful tip if you ever have to do this sort of thing: have a video camera running.) Eventually he remembered a parking meter somewhere and hurried out, never to be heard from again.

I thought I would relay this anecdote because it recently struck me that the yakuza’s way of doing things is not very different from the modus operandi of NHK, Japan’s version of the BBC. While the British broadcaster is supported by statutory TV license fees (the nonpayment of which can actually land you in jail), NHK is supported by (and supports) a legion of collectors who show up at your door claiming money under the contract you signed with the broadcaster — even if you didn’t sign a contract with them.

Actually, the yakuza-NHK comparison is unfair: The yakuza’s approach was marginally more legitimate. At least he had a piece of paper signed by someone. The NHK’s approach is to demand you sign the contract and then demand money under the contract you had to sign.

Under Article 64 of the Broadcast Act, “persons installing reception equipment capable of receiving the broadcasts of NHK shall conclude a contract with NHK for the reception of the broadcasts.” In other words, if you have a TV, you must enter into a contract with NHK. Probably nobody told you that when you bought the TV, and by the time you learn how much you are supposed to pay or the other terms of the “contract,” it is too late.

Granted, the biggest difference between the yakuza and NHK is that the latter is backed by the government. Furthermore, having an “independent” public broadcaster is deemed to be in the public interest, and supposedly it can perform this role better by being financially independent of the oft-politicized government budgetary process. Last year, a well-known Japanese constitutional law scholar was quoted as explaining that this public-interest imperative justified NHK’s compulsory contracting scheme. I hope he was misquoted, because the public interest can be used to justify a lot of restrictions on freedom — particularly in Japan — but it can’t magically transform disagreement into agreement.

That it is arrived at through the exercise of free will is part of the magic that makes an agreement binding as a contract. This is evidenced by the almost instinctive pairing of “contract” with “freedom of.” A contract you must enter into is thus fundamentally oxymoronic. NHK may produce some very fine programs and provide a valuable public service, but that should be irrelevant to whether the heart can be ripped out of contract law in order to pay its bills.

Moreover, if you actually read the NHK’s “contract,” you would find it contains provisions allowing them to double your fees as punishment if you misbehave. What’s more, you can only cancel after they confirm you no longer have a TV. The contract is vague about how they do this, but in most cases the NHK man would likely demand to come into your home to confirm it is television-free. So the contract you must sign subjects you to potential punishments and invasions of privacy — no constitutional issues there, then!

It seems obvious that the only part of contract law that matters to NHK is the part that gets them your money: the collection process. Even a contract stripped of its most basic essence provides the NHK with a means of enforcement otherwise missing in the law: Once there is a contract, they can sue you for nonpayment under it. The fact that you may not want to contract with them is a mere inconvenience.

This is where the persistent, sometimes aggressive badgering by NHK foot soldiers works its magic: At some point, the desire to avoid confrontation or bother results in many people giving up and signing, just to make them go away.

Of course, this sort of pressure has been the tool of traveling salesmen and shysters since time immemorial. A company trying to generate sales using the same techniques as NHK collectors would probably fall afoul of consumer protection laws including the Act on Specified Commercial Transactions, which prohibits salesmen from using “intimidation to overwhelm a person in order to cause him/her to conclude a sales contract or service contract.”

Contracts signed under such pressure would likely be subject to cancellation in any case. In fact, probably the only other people in Japanese society who are widely associated with ringing doorbells and demanding money are . . . yakuza, and you aren’t supposed to deal with them at all. It is odd that the public interest is supposedly advanced by a public broadcaster that finances its operations through practices that the government is generally trying to stamp out.

For that matter, surely there are easier ways for NHK to collect its pound of sashimi: a lump-sum payment when you buy a TV, or how about including their charges with cable or satellite subscription fees? In fact, why not just have a Broadcast Act that actually says, “Everyone who has a TV has to pay money to NHK.” OK, that last one might be constitutionally problematic — it being a tax that benefits a specific entity rather than going into public coffers — but that would at least be more intellectually honest than a system that relies on farcical notions of contracts and a thinly disguised form of harassment.

With more people staring at PCs or smartphones, NHK is now asserting that TV-enabled computers and phones are also subject to their fees. Recent press reports also suggest the broadcaster’s executive committee is at least debating the possibility of doing away with the bothersome fiction of a contract and instead seeking permission to collect fees from everyone, whether they have a television or not. This may never happen, but if the internal debate turns into a public one, hopefully there will also be some discussion about whether the NHK is still relevant in an age where countless sources of news and other content are available online.

In the meantime, the broadcaster has been using litigation as a response to a declining population of television viewers and an increasing numbers of refuseniks, particularly since Prime Minister Shinzo Abe began his fairly blatant campaign of politicizing the broadcaster’s governing body. NHK has been taking people to court not just for nonpayment, but for refusing to sign their contracts as well. At a recent dinner, I had the opportunity to ask a judge if the NHK was having any success in such lawsuits. “Yes, but by sacrificing contract law” was his response.

Litigation is where your acquiescence in the “contract” process probably really helps, because if the NHK sues you for nonpayment, it can avoid the problem encountered by our yakuza extortionist: not being able to articulate exactly how much you owe. A definite sum is likely to be a basic requirement in a breach-of-contract action before even the most obsequious of “halibut judges” (justices whose primary concern seems to be how they are regarded by those above them in the judicial hierarchy, much like the halibut, a bottom-dwelling fish whose eyes can only look up). If you sign, the contract has a date that starts the meter running; this makes it easy to calculate the amount you owe. Refusing to sign means more work for NHK, because it has to file a suit just to establish when your contract came into force.

In October 2013, a Tokyo High Court panel led by judge Koichi Nanba leapt to the broadcaster’s aid by declaring that a contract was deemed to come into force two weeks after NHK gave notice of its “offer.” If two weeks seems like a made-up time period with no rational basis, that’s because it is, but judicial arbitrariness is apparently a small price to pay for giving the NHK a firm date from which to start the billing process.

Interestingly, just two months later, a different panel of the same court hearing a similar case reached a different conclusion. In this case, presiding judge Fumio Shimoda rejected the notion that NHK could bring a contract into force unilaterally through mere notification. He noted that there was no support for such an interpretation in the Broadcast Act or even NHK’s own contract terms.

Given this split of opinions at the High Court, at some point the Supreme Court may have to issue a definitive decision on the nature of the NHK contract. In doing so, it will probably be faced with a stark choice between upholding freedom of contract (including the freedom not to contract) on the one hand, and sacrificing legal coherence to protect the interests of the vast edifice of money and influence that is the NHK on the other.

Since the Supreme Court, like the NHK itself, is highly supportive of government policies, the result of such a case seems obvious. The good news is that whatever happens to freedom of contract in Japan, your freedom to not watch NHK will almost certainly remain unscathed.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land appears on the third Thursday of the month. Comments and ideas:

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