NSK Updates Press Club Guidelines

NSK on March 15 released the “NSK Editorial Affairs Committee’s view on the kisha (press) club system,” partially revising its guidelines. This first revision since 2002 is aimed at keeping pace with the broad diffusion of the Internet and multimedia.

The Internet is making ethics in news reporting more of an issue than ever before. The revision changes the membership rules for kisha clubs while underscoring the social responsibility of the clubs to pursue information disclosure from public institutions.

An explanation has been added so that members of the kisha clubs are obliged to take part in the operation of the clubs as a reference for making a decision on their membership applications or on requests to attend news conferences organized by the clubs.

The change affects the chapter on the definition of kisha clubs as “an institution for news gathering and news reporting.”

It recognizes that in the Internet society, Web sites are normal venues for distributing information and the selection of information for public disclosure is seemingly left to the discretion of public institutions. The guidelines now emphasize the need for accurate information presented through newsgathering based on the ethics of journalism.

The revised guidelines say kisha clubs assume social responsibility as a watchdog on public authority to press for information disclosure. Members of the clubs and participants at news conferences are therefore required to accomplish an important role, according to the guidelines.

The purpose of the change is described in the preamble. It says it is aimed to confirm the shared view that kisha clubs continue to remain “open” to any media organization that shares the public purpose of news reporting and upholds the ethics of journalism. It says that understanding and showing respect for the significance and role of kisha clubs, as well as participating in the operation of the clubs is to be a factor when it comes to applications for membership or requests for attendance at press conferences from new media institutions.

Courts at Odds over Confidentiality of Sources

The Tokyo District Court and the Tokyo High Court have rendered opposite decisions on reporters’ refusals to reveal news sources.

On March 14, the Tokyo District Court ruled that a Yomiuri Shimbun reporter had no right to refuse to reveal a news source in connection with a U.S. health food company's lawsuit filed in the United States over tax evasion.

The ruling said that a reporter could not hide a news source if there is a possibility that the information was leaked to the reporter by a civil servant in a breach of confidentiality. The district court ruled that the Yomiuri reporter had no right to refuse to testify as a witness in court over most questions asked about his informant.

The major daily newspaper issued a statement on the day of the ruling, saying the district court ruling was unusual in saying a reporter has no right to refuse to testify in the case of a news source being a civil servant, adding that the ruling restricts reporting and impedes the public's right to know. The Yomiuri appealed the ruling to the Tokyo High Court the next day.

In a series of depositions before the court in connection with the same lawsuit, a Kyodo News reporter and an NHK reporter also refused to identify a news source. The Tokyo District Court ruling was in sharp contrast with the Niigata District Court, which ruled on Oct. 11 last year that the NHK reporter was justified in refusing to reveal a news source.

The court battle was triggered by a Yomiuri report in its Oct. 10, 1997, issue that said the investigation by the Japanese and U.S. tax authorities had found tax evasion by the Japanese subsidiary of the U.S. health-food company. Other Japanese media organizations also reported the case.

The health-food maker filed a damages suit with the Arizona Federal District Court, demanding that the U.S. government pay compensation, arguing that tax information it supplied to the U.S. government was given to Japan's tax authorities and then leaked to Japan's media, causing damage to the company.

Under a bilateral legal cooperation agreement, the Tokyo District Court summoned the Yomiuri reporter, who at that time was in charge of covering the national tax administration, to make a deposition last November. The reporter refused to answer questions on the news source. His refusal to testify generated a dispute.

The March 14 ruling said that the matters on which the reporter refused to testify fall into the category of “professional secrets,” stipulated in the Civil Procedure Code, which exempts witnesses from testifying in cases where professional confidentiality may be undermined. However, the ruling said that if a reporter obtains inside information from a civil servant in a breach of government employees’ obligation of confidentiality, it constitutes an “extraordinary circumstance.”

The court said that if disclosure of a news source is ordered in such a case, it might stop reporters from being able to get information from a similar news source in the future. But it said that would actually be welcome from the viewpoint of maintaining law and order, as the risk of further illegal leaks taking place would no longer exist. It added that the general public has no legitimate right to know any information for which disclosure is banned by law.

Of the 21 questions to which the Yomiuri reporter refused to respond, the district court found the reporter’s refusal acceptable concerning seven questions, including one about the identity of the informant. However, it did not accept the reporter’s refusal to answer the remaining 14 questions, including one to confirm whether the informant was a Japanese government employee.

In a protest, the Yomiuri strongly criticized the ruling in its March 15 editorial, arguing that if media organizations must solely depend on announcements by public institutions, the media cannot provide information that the general public truly needs to know, and democratic society will collapse.

On the question of the media’s refusal to reveal news sources and government employees’ confidentiality obligations, the Supreme Court in 1978 ruled on a case in which a Mainichi Shimbun reporter obtained a classified diplomatic document from an employee of the Foreign Ministry. The top court found the reporter guilty, but concluded that the acquisition of insider information from a government employee is a legitimate professional act, so long as its purpose is for news reporting and the method and means of acquisition are deemed acceptable under social conventions.

The Tokyo High Court on March 17 accepted the NHK reporter's refusal to reveal a news source while testifying in a deposition commissioned by U.S. judicial authorities in the same civil lawsuit involving the U.S. health-food company. The high court rejected an appeal by the U.S. firm and upheld the Niigata District Court decision of last October, saying it could not see any particular circumstances that forced the reporter to testify about the news source, something that fell into the category of “a professional secret.”

“Refusal to reveal a news source can be allowed unless there are particular circumstances” where if the reporter refuses to reveal the source, social and public interests might be damaged to an equal or larger degree. "It is difficult to say that the reporter's refusal would inflict equal or larger damage on public interests in this case,” the high court said.

Regarding information that might indirectly specify the organization to which the news source belongs, the ruling said there are cases in which concealment is permitted. It basically followed the line of the 1978 Supreme Court decision regarding the media’s newsgathering activities involving civil servants.

The ruling described media newsgathering as a premise for freedom of the press and the public's right to know, which are indispensable components of democratic society. News sources should fall into the category of “professional secrets” and there is good reason for reporters to refuse to testify in order to protect such secrets, the high court said.

The counsel for the U.S. health-food maker argued that there is no legitimate merit to protecting a news source that obviously violated a confidentiality obligation and that such protection is tantamount to concealing an illegal act. The high court rejected this argument, saying it is the media that might be affected by the disclosure of the identity of a news source and the resultant difficulty in future newsgathering.

The ruling quoted the 1978 Supreme Court decision that said getting insider information from a government employee is a legitimate professional act, so long as its purpose is for news reporting and the method and means of acquisition are socially acceptable. The high court said that even if newsgathering might induce an act by a news source in violation of the National Civil Service Law, such activities do not immediately become illegal, and the necessity of hiding the identity of the news source should be recognized. In this case, it is neither necessary nor appropriate to examine whether the news source violated relevant law, aside from judging the appropriateness of the purpose and method of the newsgathering, the high court said.

On the question of seeking testimony to identify the organization to which the news source belongs, the ruling said it is next to impossible for the media to maintain relations of mutual trust with news sources only by concealing information directly specifying the news source. The need to get the reporter’s testimony on the identity of the news source’s employer is not so crucial as to undermine social and public interests, when compared to the value and benefit of the freedom of newsgathering, it concluded.