Friday, February 6, 2009

Ethics of Visual Anthropology in Japan - Part Five

The Law in Japan

Continuing on...

It seems there are laws relating to photographing in public in Japan (mostly applied to the media) within the areas of privacy and defamation. Here I am borrowing and quoting the fine works of

Lawrence Ward Beer (1984 Freedom of Expression in Japan: A Study in Comparative law, Politics, and Society. Tokyo, New York and San Francisco: Kodansha International LTD. Chapter 9 "Defamation, Privacy, and Press Freedom" pp. 314-334.)


Mark D. West
. (2006 Secrets, Sex and Spectacle: The Rules of Scandal in Japan and the United States. Chicago and London: University of Chicago Press. Chapter 3 "Privacy and Honor" pp. 58-113.)

I will begin with Beer's interpretation of Japan's Civil Code and Criminal Code and interject some of West's more recent comments and examples.

Civil Code

Article 723 ...Defamation (Meiyo kison) is an "unlawful Act" (Fukokoi) for which pecuniary compensation and/or other "suitable measures" such as public apology my be required: If a person has injured the reputation of another, the Court may, on the application of the latter, make an order requiring the former to take suitable measures for the restoration of the latter's reputation either in lieu of or together with compensation for damages.

Article 709. A person who violates intentionally or negligently the right of another is bound to make compensation for damage arising therefrom.

Article 710
. A person who is liable in compensation for damages in accordance with the provisions of the preceding Article shall make compensation therefore even in respect of a non-pecuniary damage, irrespective of whether such injury was to the person, liberty or reputation of another or to his property rights.

Criminal Code

Article 230. A person who defames another by publicly alleging facts, shall, regardless of whether such facts are true or false, be punished with imprisonment at or without forced labor for not more than three years or a fine of not more than 1,000 yen. (Beer 1984: 319)

In both civil and criminal cases in Japan, injurious statements about matters of private concern are actionable regardless of their truth. Injurious statements made about matters of public concern must be truthful or the speaker must have a good-faith belief in their truth (West 2006: 75).

In Japanese, then, defemation/meiyo kison is not about damage to mere reputation (hyoban)... it's about damage to honor (meiyo)... Reputation/hyoban is the view from the outside, how others see you... Honor/meiyo has several definitions... [I]t also includes... internal feelings that can be variously described as pride, personal integrity, dignity, or awareness of the worth of one's character. It's this concept of honor as both internal feelings and external reputation that illuminates the Japanese defamation law regime. (West 2006: 79)

West describes one example of this playing out in the courts. Well known baseball player Kazuhiro Kiyohara was reported by one publication to have visited strip joints in Seattle when he was supposed to be training. Kiyohara denied it and sued for defamation. Noting psychological injury to Kiyohara when he was supposed to be training as well as the weekly's continued publication of such stories even after suit was filed, the Tokyo District Court awarded damages of $100,000 (West 2006 80).

Here's another example: Masumi Hayashi was sentenced to death for murdering four people and sickening 63 others with poisoned curry in Wakayama in 1998... [T]he publisher and others have been ordered to pay ¥2.2 million in compensation after the Supreme Court also ruled that a photograph of Hayashi they published had infringed on her reputation and well-being. The high court originally ruled against the publisher and others after they published a photograph of Hayashi wearing handcuffs and a rope around her waist and three illustrations of her in court that [she]... claimed had infringed on her portrait rights. In the Supreme Court ruling, presiding Justice Niro Shimada said the photograph was illegal but that the illustrations - except for one also depicting a handcuffed Hayashi with a rope around her waist - were not inappropriate... In his ruling, Shimada said, "The defendant is responsible for paying compensation if the portrait exceeds the permission given by the person pictured after his or her social status and activities and the place, purpose or necessity of taking the photograph are taken into account." (The Daily Yomiuri, November 11, 2005, page 1)

...[A] Grand Bench decision in late 1969 recognized the Right of a Person to His Own Likeness (Shozoken; e.g., a right not to be photographed without consent) as an aspect of the right of privacy ultimately guaranteed by Article 13 of the Constitution, which provides that "All of the people shall be respected as individuals" with the "right to life, liberty and pursuit of happiness." Although relatively few citizens were initially aware of it, local governments began around 1975 to pass ordinances designed to protect citizens' privacy rights. Finally in 1980 and 1981, the national government conducted a Cabinet-level study of the effects on privacy rights of the increasing and ever-more-sophisticated administrative use of personal data in computers. A privacy Protection Law was expected to follow. (Beer 1984: 325)

To protect personal information from exploitation by both private and public sources, the Japanese legislature in 2003 passed the Personal Data Protection Law, the key provisions of which became effective in 2005... The law protects as "personal information" not only health, financial, and social-status issues but also such basic information as names and birth dates. (West 2006: 61)

The National Consumer Affairs Center of Japan reported 3,238 inquiries on the law in the six months following its enactment; the Center found the formal, strict legal interpretations that were being used on a daily basis to be "an overreaction." (West 2006: 62)

[T]hree major legislative initiatives - Juki Net, the Information Disclosure Law, and the Personal Data Protection Law - suggest a Japanese society in which dynamics of the debate about secrecy and information flow have shifted significantly in recent years toward an open government and protection of citizens' privacy. (West 2006: 62)

...[W]hen a photographer illegally snapped photos of Aum Supreme Truth cult leader Shoko Asahara in Tokyo District Court, he was challenged by eltie reporters not for his clear violation of court rules, but with the question, Are you not thinking at all of Asahara's right to privacy?" ...The publication, the criticism, and the debate show not only the ways that the Japanese concept of privacy rights differs from the American, but also the lack of social consensus. (West 2006: 68)

Both Beer and West provide many more examples of lawsuits pertaining to privacy rights in Japan. Consistency in court decisions does not seem to be a pattern. With such seemingly ambiguous laws and interpretations of them, how should visual anthropologists go about their research and still protect the people they study and themselves as well? Stay tuned to VAOJ... Guidelines to follow. 本当に!

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