"It’s OK to film people in public in Japan, if the conditions justify it"

My colleague Sally brought this recent article by attorney Kyoko Hijikata in The Japan Times (1/25/15) to my attention. It addresses a complex question that VAOJ has been wrestling with for years.

Reader R.S. asks, “In Japan, is it OK to film other people in public?

Well, in Japan, freedom of expression is guaranteed by Article 21 of the Constitution. As filming and taking pictures are two of the means by which individuals can express their ideas, they are protected by Article 21.

On the other hand, people have the right not to be photographed or filmed without good reason. We call this their portrait rights, and this right is based on Article 13 of the Constitution, which guarantees the “right to life, liberty and the pursuit of happiness.”

So, Japan’s courts have had to consider which right takes priority in particular cases. In a ruling in 2005, the Supreme Court stated that taking photos without consent is illegal if the extent of the violation of the subject’s personal rights exceeds the maximum acceptable according to social norms, while taking into consideration the social status of the people photographed, the content of activities, the location where filming took place, the photographers’ purpose, the way the pictures were taken, the necessity of capturing the images, and so on. Although the case that led to this ruling concerned courtroom photographs and drawings, the precedent is considered to apply equally to film.

In the Supreme Court case, the photographer had taken pictures of the accused in court, and the Supreme Court made the judgment that this act was illegal because the accused was in handcuffs, which were tied to a rope around his waist, and the photographer had not obtained the court’s permission to take pictures.

As described above, the courts make judgments based on several factors, which means the decision-making process can be quite detailed, and rulings will differ from case to case depending on these variables.

For example, in another quite similar case in November 1993, the Tokyo High Court ruled that images of a suspect being driven to court were legal. The filming was done from the road, and the picture of the accused only showed his upper body, so restraints such as handcuffs and ropes were not visible.

So, to answer the reader’s question, “Is there a right to film other people in public?” the answer is “Yes, but only if it can be justified in the circumstances.”

Source: http://www.japantimes.co.jp/community/2015/01/25/how-tos/its-ok-to-film-people-in-public-in-japan-if-the-conditions-justify-it/#.VMXRrieWRHB

I think this answer to the question of photographing in public in Japan is dangerous because of its simplicity. Hijikata discusses the difficulty courts have in making such decisions (there are many more cases the author should probably have considered other than those dealing with criminals - how about some real life scenarios?) so how can a normal citizen, student and/or foreigner judge "if it can be justified in the circumstances"? It is more than simple rights - ethics, morals, values and feelings should be considered. If I were pressed to give a simplistic answer to this question, I would say ask the person you are photographing for permission.

For previous VAOJ coverage of this question, see the Shooting Culture in Japan project: http://visualanthropologyofjapan.blogspot.jp/2009/02/ethics-of-visual-anthropology-in-japan_12.html