The Tokyo High Court on Wednesday revoked a lower court injunction against the publication of a magazine that carried a story on the divorce of former Foreign Minister Makiko Tanaka’s daughter, citing freedom of expression and the public’s right to know.
In an extremely rare move, the Tokyo District Court issued a temporary injunction on March 16 that banned publication the following day of the March 25 edition of Shukan Bunshun, judging the article in question did not serve the public interest and could cause irrecoverable damage to the daughter and other parties concerned.
But on Wednesday, the high court ruled that the injunction greatly limited freedom of expression, an essential component to the sound development of democratic society and “one of the rights that must be most respected under the Constitution.” As such, injunctions prior to publication should not be issued so easily, it added.
The high court acknowledged that the article does not serve the public good and violates the privacy of Tanaka’s daughter, but nonetheless does not “greatly” disgrace her or cause “irrecoverable damage” to her, because someone’s divorce “usually” becomes information widely shared by the public.
“The article certainly violates the privacy (of those mentioned), but it does not deserve an injunction prior to publication, because the content and scope of their private lives as revealed by the article are unlikely to cause grave and irrecoverable damage to them,” the high court said.
At the same time, the high court rejected claims by the publisher, Bungeishunju, that Tanaka’s daughter could be viewed as a public figure, agreeing with the district court that she is a private figure.
Bungeishunju Ltd. welcomed the high court decision.
“We applaud the ruling as one that has protected freedom of expression at a time when that right was on the very brink of collapse,” the Tokyo-based firm said in a statement.
The publisher added that while Wednesday’s ruling voids the lower court’s injunction, the fact that it was issued will remain.
“We have apprehension that (the injunction) will continue to have an unjust and intimidating effect on reporting,” it said.
Tanaka’s daughter and her ex-husband sought a court injunction to ban the article, claiming they are private figures and the article would gravely violate their privacy.
The Tokyo District Court issued the injunction a day before the magazine hit store shelves. It applied to 30,000 copies of the edition that had not yet been shipped by the time Bungeishunju was notified of the order. The 740,000 copies that had already been delivered to retailers were not affected by the ban.
An appeal to the district court by the publisher seeking a repeal of the injunction was rejected on March 19.
Bungeishunju, which mailed 3,000 of the remaining copies to subscribers after removing the article in question, then appealed to the Tokyo High Court, arguing that Tanaka’s daughter could be viewed as a public figure and that its report on her divorce benefits the public, because it is likely she will eventually follow in her mother’s footsteps and run for a Diet seat.
On Wednesday, the publisher said that with the high court decision, it will resume shipments of the remaining copies.
Tanaka’s daughter had argued that while freedom of expression is very important, violating the privacy of a private figure should not be condoned.
Judicial precedents by the Supreme Court have set three criteria that must be met for courts to issue injunctions prior to publication — whether a publication concerns a public matter, whether it serves the public interest and whether it threatens to cause irrecoverable damage to individuals.
When asked about Wednesday’s decision, Chief Cabinet Secretary Yasuo Fukuda told a regular news conference that it would be inappropriate for him to comment on something decided on by the courts.
But at the same time, he said that “common sense” should dictate the extent to which politicians’ family members should be considered public figures.
“The district court may have felt that a person’s privacy could not be protected without such a move (like a temporary injunction),” he said.
Makiko Tanaka is the daughter of the late Prime Minister Kakuei Tanaka. She resigned her House of Representatives seat in 2002 amid allegations that she had misappropriated an aide’s state-paid salary. She was subsequently cleared of wrongdoing by prosecutors and re-elected in the Nov. 9 general election.