The Tokyo District Court’s temporary injunction banning the sale of the weekly Shukan Bunshun over an article about the private life of a Diet lawmaker’s daughter triggered debate over the issue of privacy vs. freedom of expression.
Privacy issues are a hot potato amid soaring compensation payouts awarded by courts in privacy-related damages lawsuits and the enactment last year of legislation to protect personal information, which critics said would regulate reporting on scandals.
Lawyer Yoichi Kitamura, an expert on the issue who represents Shukan Bunshun’s publisher, Bungeishunju Ltd., in the injunction issue, told The Japan Times on Friday that the rare move by the court threatened freedom of expression and the public’s right to know.
Kitamura said the primary problem was that it banned a publication before it hit newsstands.
Such an injunction “should be considered as an ‘exceptional exception ‘ ” that should not be applied even to cases involving a person’s privacy, because it deprives the public of a chance to discuss whether an article should be reported or is accurate, he said.
He cited judicial precedents by the U.S. Supreme Court that say that such injunctions can be issued only when a publication threatens to immediately damage military activities during wartime.
“Damage incurred through media reports on individuals should in essence be offset by monetary compensation through damages suits,” Kitamura said.
He said it is hard to draw a distinct line between what constitutes public figures’ privacy and what elements of the lives of private figures the public should know about.
“The courts have begun paying more attention to the definition of public or private figures, but such definitions . . . should be created through public consensus,” he said.
“The most conspicuous problem of Japan’s courts is that they tend to protect public figures more than private citizens, as they set higher compensation standards for those who are publicly known,” he said.
He said that in the United States, public figures shoulder the burden of proving whether a report is false if they file damages suita against the media. In Japan, it is always the media’s responsibility to prove the truthfulness of their reports, he said.
The lawyer said the district court’s injunction was detrimental to the media because it set a precedent of deciding to ban of a publication only after several hours of deliberation.
“The media can incur huge losses through sales bans, which could exceed the levels of compensation ordered by courts in privacy-related damages suits,” he said.
“For instance, (Bungeishunju) could have lost hundreds of millions of yen if the court had banned Shukan Bunshun’s sales before it stared shipping copies,” he said. “All reporters will remember this injunction when they report on scandals.”