Court misses the big picture

The Japan Times criticizes ruling against protecting Yomiuri Shimbun news source

Japan Times
Tuesday, March 21, 2006

Protecting a news source is the most important ethic of a reporter. But the Tokyo District Court has mounted a frontal attack on this principle, endangering freedom of press and the people's right to know. The court decided March 14 that when the possibility exists that a news source is a public servant, the reporter cannot refuse to disclose the name of the source since the source may have leaked confidential information in violation of law.

A logical conclusion from this decision is that it could become almost impossible for reporters to meet or contact government officials in person for news gathering, since the latter fear that the reporters would be forced to disclose their names. Reporters would then have no choice but to only pass official announcements on to the public. The judge completely fails 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 know information that government authorities may not want them to know. 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 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 ethic 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 news 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 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 news 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 the interest of society.

The decision further states that a reporter cannot refuse to reveal his or her news source if the source is a lawyer or a certified public accountant, who is duty-bound by law 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 waking 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 NHK (Japan Broadcasting Corp.) 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 on Friday.

As for Mainichi Shimbun reporter Takichi Nishiyama's obtaining diplomatic documents from a female 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 offer information is not illegal if it is for the purpose of reporting and if the means employed by the reporter are appropriate. This Tokyo District Court decision clearly undermines the foundation of democratic society.