Media and Telecommunications in Japan

Japan is one of the largest media markets in the world. Well known for its typical TV shows, Japan is also known for its manufacturing of electronic equipment and appliances, used all around the world.

Japan has an image of heavily-regulated society. In Media’s cases, market forces often have greater weight than legal forces. If you search for a legal answer about media-related matters you may find only a few or no law exists. Even when a law exists, it has weak power compare to the market power.

Legal status of speech and press

In the 21 art of the Japanese constitution, we can read that « freedom of assembly and association as well as speech, press, and all other forms of expression are guaranteed » The 21 article seemed to be absolute, explaining that no censorship shall be maintained but in reality courts and governments make the meaning of this article more nuanced. On the basis of the 12th article: « people shall refrain from any abuse of these freedoms and rights », government can censor and pass off any expression as an abuse of rights.

To be able to assist in press conferences and official announcement journalists have to be part of an official press club (Kisha Kurabu) which are attached to governments and are protecting them. For example, an American lawyer was taking notes during a trial and he was told to stop taking notes because this was only authorized for reporters members of a press club related to the court. The press clubs claim to be voluntary association but in reality the journalists receive benefits from the people they cover.

The member of those press clubs are usually members of the same media’s organisation.

So every information given by the press are selected, kind of supervised by the government, and are always approximately the same.

The major newspaper companies also are the operators of the principal broadcasting stations in Japan. So this is a problem for freedom of expression and equal access to information since all the ways of communication are controlled by a very small number of media, which has a lot of power.

In France, it is written in the French Declaration of the Rights of Man and of the Citizen, in the Art 11th that « The free communication of thoughts and opinions is one of the most precious human rights: every citizen can therefore speak, write and print freely. »

So the law seems to be pretty much the same but the difference is that in France there is no control of who can have access to information.

About Defamation and Invasion of Privacy (Meiyo Kison)

There are two ideas that may face each other in terms of defamation and invasion of privacy: Freedom of expression and individual rights.

Contrary to the common Low Countries, in Japan, slander and invasion of privacy are part of the same Article (723). It is written that when someone is charged with violating someone else’s honor, he is guilty, no matter if there is a real invasion of privacy or not because honor is more important than the rest in Japan.

We can illustrate it with an example.

A Korean author had written a book which is « a fish swimming in stones » and the main character had a facial disfigurement. He described in his book the disfigurement like a « weird, tragic, mask » and a « dead body in the water »

An acquaintance of the writer, said that this book was about him because he was disfigured too. So the plaintiff filed a lawsuit for violation of his honor.

If this story had taken place in France, the lawsuit could have been for libelous or for invasion of privacy. In both cases the Supreme Court would have ruled in favor of the writer because the arguments of the plaintiffs would have been inadmissible. But in reality, the Supreme Court ruled in favor of the plaintiff and decided to prohibit the publication of the novel because of a mental suffering of the plaintiff resulting from this book.

More generally, in those types of cases, related to defamation or privacy, the Courts rule in favor of the plaintiff on the principle of personal honor, and impose damages to the defender. But the level of damage is generally so low that it doesn’t have any kind of deterrent effect.

About reporter’s rights to refuse to reveal a source.

The clause about speech and press in the Japanese constitution was inspired by the US constitution so they are very close but diverge in one specific point: the right of a reporter to refuse to reveal his source. In the USA, the Supreme Court does not distinguish the reporters’ and the ordinary speakers’ rights while it's different in Japan.

A reporter has right to maintain confidentiality even during a trial. It is considered as a professional secret by the Code of Civil Procedure.

News-gathering is the basis of the freedom of press and it support the right of the public to have access to information. So a reporter is not required to give his source except if the consequences are more serious. An act couldn’t be considered as a violation of the law if it is done appropriately and for news reporting.

Print, Broadcasting and telephones.

The print media is regulated by all the points mentioned in the previous section, but also has specific regulation. An antimonopoly law is designed to protect trade and commerce from unfair business practices, it forbids anticompetitive acts. But they are exceptions in the printed media sector. Newspapers are exempted from the Antimonopoly Law, to allow everyone to have an equal access to those materials needed.

But the Saihan Seido (Resale price maintenance system) explain that some other trade practices can be define as unfair and punished by law, like the following:

A person who publish a daily newspaper and offer its products at a different price depending on the person and the place it is delivered. Same if the seller is seeking the newspaper by house-to-house. also if a publisher who is imposing disadvantages to the distributor, for example give him more newspapers to sell than the number he asked for.

NHK (Nippon Hoso Kyodai) is a Japanese Broadcasting Company.

This company is the state-owned company that manages Japanese public service radio and television stations. It Operates 5 televisions channels and 3 radio channels.

In the Broadcast Law, we can focus on an article that explain that if someone has an equipment which can receive the NHK broadcasts he must conclude a contract in respect of such receipts. But also that NHK must have authorization from the Minister of Posts and telecommunications for the terms of contracts mentioned before.

So this company is not financed by the government directly. But it is financed by mandatory reception fees paied by the audience.

About broadcast competition and the challenge of digitizing.

Since the arrival of new technologies in the sector of information’s diffusion, new opportunities had been provided to make new programs but also had fragmented the audience because of the new ways to have access to information. So more programs for fewer people. The government had established a policy to prevent « excess competition » to ensure profits to radio and television companies, because of the low number of competitors.

Of course the major media organization have a lot of power concerning information diffusion but now internet can give more diversity about what is diffused.

After the war, only NTT (Nippon telegraph and telephone) existed as phone company and was a government-owned company. It was privatized in 1985 but the government had already more than 40% of shares.

In the 90 the company broken, in the name of promoting competition of the marketplace and was succeeded by NTT East and West. But the two companies together detained for 95 % of all the fixed line contracts in Japan.

During Years, the NTTs price of fixed lines connection was one of the higher in the world, but because that was the only way to have a phone people paid it. But thanks to the opening of the competition in the mobile phone market, the prices became lower and the population preferred to cancel their subscription for their fixed line with NTT and buy a mobile phone. The two main competitors were SoftBank and AU by KDDI. Those two companies have invested in the mobile phone market and especially with foreigners providers (like Apple). Thanks to it that have seen their market share considerably increase. NTT focused on the foreign market much later, that is why it has lost so much market share faced to their competitors.

Music, movies, and video games

The Japan music and recording industry is the second worldwide. But this industry could be affected by the increasing of the downloading technology.

Recording rights arise from the Copyright Law. We can find information in numerous articles that gives performers rights over record of their performances, broadcast of those recordings and transfer of the performance to the public and lending. These intellectual property rights exist for 50 years from the time they record their performance.

Radio or Television are allowed to broadcast recordings if they pay a fee to the recording industry association of Japan (RIAJ). This is the « secondary use » in the Copyright Law. The fees are redistributed as 1/4 for composers and authors and 1/2 for publishers.

The same system exist in France, the SECEM (society of music authors, composers and editors) collects the fees and then redistributes 1/3 to each.

Japanese movie industry looks pretty much like the music industry but the system of distribution is different.

An important copyright law distinguishes motion picture and other forms of media about the distribution rights.

It is written in the First-sale doctrine that when you buy something it becomes your ownership and then you can do whatever you want with it.

But it is different for movies. When someone buys a movie, he doesn’t have right for further alienation or to show it to the public even if he lawfully possesses a copy. The Art 26 of the Copyright Law explains that the author of a cinematographic work has the exclusive right to distribute a copy. So movies are not subjects to the First-sale doctrine.

The Video games industry is different from all the ones I talked about before.

Japan is really famous in this sector thanks to Nintendo and Sony Playstation, 2 of the 3 world’s major video games platforms.

The resale market is a huge market in this sector.

And as we have seen previously, in general it is permitted to resell a product we bought, thanks to the « first-sale doctrine » But video games producers want their work to be assimilated as cinematographic work to benefit from the exclusive right to distribute a copy.

The definition of a cinematographic work is not really precise. For example, if animation for anime movies is admitted as cinematographic work why animation for video games can’t be admitted?

Video games’ producers have called on the law but the Supreme Court rules against them because they distributed their work directly to the public, so they placed themselves in the ordinary trade category, so had exhausted their specific rights.

Freedom of information and freedom from disclosure of information

Disclosure of personal information seems to confront the views of the press and business, or governments. Press is dedicated to the diffusion of information, so was concerned by the fact that many laws have been made to preserve the disclosure of information.

In the law, we can see that it is forbidden to disclosure personal privet information. But reports, from journalist or writers for example, are exempted from this restriction only if it is holding by themselves. So if people give personal information about someone else to reporters they can be punished. But it is difficult to know the truth, if the information is given by a third person or if they have been discovered by the reporter.

For the research of information, press is also hindered by laws that impose penalties on government’s officials for unauthorized disclosure.

But the Whistleblower Protection Act provided some safety for whistleblower who gives information about a violation of law or dangerous activity. An employee can't risk being fired if he exposes his boss' illegal business for exemple.So in reality there is a lot of case where people are exempted from penalties if they disclose information.

Concluding observations

The different laws about Copyright, Personal Information or freedom of the press are really complicated because they are a lot of specific cases and exemptions.

The involving of Internet has brought additional difficulties for laws to cover all situations.

It is difficult to determine where the freedom of speech and disclosure of each person has to stop so as not to impinge on the freedom of the others.

The mass communication in Japan is huge and one of the biggest in the World. The government and medias controlled the information transmitted to the public but thanks to the new technologies, new ways of communications are growing. With the development of the Internet, the population is also allowed to relay information but it can be dangerous because all the information can be false and misleading.