Court misses the big picture
(From The Japan Times March 21 issue)

大局を見失った地裁： 取材源秘匿を否定

    A logical conclusion from this decision is that it could become almost impossible for reporters to meet or contact government officials for news gathering, since the latter could fear that reporters would be forced to disclose informants' names. Reporters would then have no choice but to just pass official announcements on to the public. The judge completely failed to understand the role and function of the mass media.

    A reporter's job is to get information that does not appear in official announcements or that government organizations want to hide from the public. In this way, reporters render a service to society. The court's decision would deprive people of the opportunity to have access to information that government authorities may want to deny them. A higher court should scrap the decision.

    This decision stemmed from a Yomiuri Shimbun reporter's refusal to reveal a news source in a deposition before the same court in connection with a lawsuit later filed in the United States by a U.S. health-food company. On Oct. 10, 1997, the newspaper reported that the company's Japanese subsidiary was slapped with tax penalties by the Tokyo Regional Tax Bureau for allegedly hiding profits.

    The company filed a lawsuit against the U.S. government, claiming that its reputation was damaged because erroneous tax information provided to Japanese tax authorities by the U.S. government was leaked to the media. The company later received a tax refund after protesting the tax decision.

    At a court hearing in November 2005, the reporter refused to reveal his news source to the company, citing the journalists' professional ethics of protecting sources. Moreover, the Civil Procedure Code exempts witnesses from testifying in cases where professional confidentiality may be undermined.

    But the court decided that the reporter cannot refuse to reveal his source if it is strongly suspected that the latter is an official of the National Tax Agency or another government organization and that he or she committed a breach of confidentiality in violation of the National Civil Service Law and other laws. It said allowing a reporter to refuse to reveal the news source in such a situation would be tantamount to helping hide legal violations committed by the source.

    Apparently, the possibility did not occur to the judge that disclosure of information by a public servant, even in violation of the law, could better serve society.

    The decision further states that a reporter cannot refuse to reveal a news source if the source is a lawyer or a certified public accountant, who is duty-bound to uphold confidentiality. It could force the disclosure of the names of those who have risked their position or employment to convey information often hidden by his or her organization. Thus it would discourage someone from becoming a whistle-blower, an important role in alerting people to injustice or corruption.

    The judge's narrow view, which fails to see the larger issue at stake, is obvious. He went on to say that it would be a good thing if the threat of disclosure of a news source made it more difficult for reporters to get information from public servants because that would mean fewer legal violations in the form of breach of confidentiality. In his mind, the freedom of speech, press and other forms of expression guaranteed by Article 21 of the Constitution apparently get a lower priority.

    It must be noted that, in October 2005, the Niigata District Court allowed public broadcaster NHK to refuse to reveal a source used for a report dealing with the same news item carried by the Yomiuri Shimbun. The Tokyo High Court upheld the decision March 17.

    As for Mainichi Shimbun reporter Takichi Nishiyama's obtaining diplomatic documents from a woman worker at the Foreign Ministry on a Japan-U.S. secret pact related to the 1972 reversion of Okinawa to Japanese control, the Supreme Court, in its May 1978 ruling, accepted the importance of the media's role in democratic society, stressing that a reporter's importuning a public servant to get information is not illegal if it is for the purpose of reporting and if the means employed by the reporter are appropriate.

    The recent Tokyo District Court decision clearly undermines the foundation of democratic society.

The Japan Times Weekly: March 25, 2006
(C) All rights reserved

    問題は、読売新聞記者が東京地裁の民事裁判の尋問で、取材源を明示することを拒否したことに端を発した。同紙は97年、米国企業の日本法人の所得隠しが露見し、東京国税局により追徴課税されたと報じた。米国企業は「米政府により日本の国税当局に開示された誤った情報が漏洩されたため、損害を被った」として米政府を相手に訴訟を起こした。05年11月の尋問で、記者は職業倫理をたてに、取材源を明らかにすることを拒否した。民事訴訟法は「職業の秘密に関する事項」については証言拒否を認めている。

    決定は、国税庁などの政府機関関係者が取材源で、国家公務員法の守秘義務違反の疑惑がある場合、取材源の秘匿を許すことは取材源の法律違反を隠すことにつながると述べた。

    担当裁判官は、問題を大局的に捉えていない。記者が取材源を秘匿できなければ、内部告発をする公務員はいなくなる。決定では憲法で保証されている報道、表現の自由の優先度が非常に低い。

    05年10月に新潟地裁は読売新聞と同様の報道をしたNHK記者に対し、取材源開示拒否を認めており、東京高裁も17日、この決定を支持した。沖縄返還をめぐり、毎日新聞の記者が外務省職員から日米秘密合意文書を入手した問題で最高裁は78年に、「公務員に対する取材は、真に報道目的で、手段が適正であれば違法でない」と判断した。

    今回の東京地裁の決定は、民主主義社会の根幹を揺るがすものである。