FREEDOM OF THE PRESS VS. LIBEL
KEYWORD: LIBEL, FREEDOM OF THE PRESS.

When I was young in the USA, it was often said that if you want to make a book a best seller, get it put on the banned book list of the Catholic Church. That really does not apply anymore as the last thing young people will do is read a book (its shifted to web-sites! & computer games). But the basic principal still applies. Getting something banned only piques everyone’s curiosity.

This surely proved the case with an article in a magazine article about the grand-daughter of the late Prime Minister Tanaka. The ladies parents are also members of the Japanese parliament. Indeed, her mother, the daughter of the late prime minister, was an outspoken Foreign Minister. Nevertheless, the lady herself has never run for political office (although she did campaign with her parents). The article she opposed was about her short marriage in the USA, a marriage her parents strongly opposed. Her ex-husband also opposed the publication of the article.

In the end, FREEDOM OF PRESS PREVAILED. The Tokyo High Court overturned an injunction to stop the publication of the article. But it was all too late, and the furor just piqued interest, helping to boost sales of the magazine, which mostly sold out before the injunction came into effect. One interesting note was that the injunction did not apply against the retailers, only the publisher, but many retailers did remove the magazine once they became aware of the injunction. The injunction had been issued temporarily by a three judge panel of the Tokyo District Court. A few days later it was made permanent, until the high court overturned it.

Most importantly, this kind of injunction is rare in Japan and the High Court ultimately overturned it. In the meanwhile, the publisher, Bungeishunju sold 740,000 copies of its magazine, failing to sale only 30,000 before the injunction came into effect.

In 1986 the Supreme Court of Japan gave some guidance on injunctions against publishers for articles on politicians. For an injunction to issue, the Court said that the publication should contain false information, was likely to create severe damage for the person they were not likely to recover from, and the article served no public purpose.

For this case, the Tokyo High Court admitted that the lady was a private person, the article had no public purpose and while violating her privacy, it did not cause irrecoverable damage. The district court had given a great deal of relevance to the fact that the lady was a private person, not a politician. One commentator said that the Japanese Supreme Court had never maintained an injunction on the mere grounds of privacy violations.

In July, 2004 however, the Supreme Court ordered the same publisher, Bungeishunju to pay a family 9.2 million yen for libel damages. The magazine published an article claiming that an archeological find by a long retired professor was a fraud. The retired professor committed suicide.

In February, 2004 the Supreme Court ordered the same publisher, Bungeishunju to pay 55 million yen in damages for falsely claiming that sexual harassment was rampant at a cosmetics company.

Also, in February, 2004, the Niigata District Court ordered the same publisher Bungeishunju to pay 50 million yen for a story that a medical college professor had sexually harassed a sex change patient. (Surely, it was only research!)

Wow! That Bungeishunju Co…

In June, again against the same publisher, Bungeisha, the Supreme Court rejected its appeal and ordered it to pay 6 million yen and publish an apology for an article stating that many people did not like the bridge designed by the architect plaintiff.

The Nagoya High Court dismissed a libel suit against a publisher who printed an article about a murderer using a pseudonym that sounded similar to that of a real imprisoned murderer. The publisher was not free to use the real name as he was minor at the time of arrest. The court found the information more important than the damage sustained by the plaintiff.

The Osaka High Court ordered the government to pay a farmer 6 million yen for ruining his business. Nine thousand people fell sick and 3 died, from food poisoning by the o-157 variety of E. coli bacteria found in the farmer’s daikon sprouts. The Osaka High Court found insufficient evidence for that claim.

The Yokohama District Court ordered a doctor to pay 4.4 million yen in damages for libel after he told the media that he had been fired because he agreed to testify against the hospital in a malpractice case. The hospital was able to prove that he had been fired for other reasons.

Takefuji Corp. dropped a libel case against a freelance journalist and a magazine publisher for an article that said the company colluded with policemen. This was part of an enormous scandal in 2003 involving the company president who was later arrested and convicted for illegally wiretapping journalists phones. The company president also appeared to use the libel litigation to intimidate journalists. After his conviction he became more contrite and the company dropped the case.

A 2001 study by the Tokyo District Court said defamation damages for a public personality should be 4-5 million yen. A mass media group found that between September, 2002 and August, 2003 media firms lost 40 defamation or invasion of privacy cases with 15 cases having awards of over 3 million en and 7 awarded more than 5 million yen. In October, 2003 the Tokyo High Court awarded 19.8 million yen against a publisher claiming a hospital president had killed several people, including his wife for insurance money.

Copyright 2005. All rights reserved Attorney Roderick H. Seeman

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