The Supreme Court, in recent decisions in two separate cases, upheld a reporters¡Ç right to refuse to reveal news sources in connection with a 1997 report on the taxation of a Japanese subsidiary of a U.S. health food company.
It was the first time the Supreme Court had ruled in favor of the right of reporters to refuse to reveal news sources in civil courts.
In a series of depositions before the courts in connection with the same lawsuit, a number of reporters affiliated with Japanese media organizations refused to testify in relation to their news sources.
On Oct. 3, the No. 3 petty bench of the Supreme Court, in a unanimous ruling by the four judges, defended an NHK reporter¡Çs refusal to reveal a news source. On Oct. 17, the top court ruled in favor of a Yomiuri Shimbun reporter in a similar case.
In particular, the Oct. 3 ruling said that news sources fall under the category of occupational secrets and witnesses can refuse to testify in relation to such news sources.
In 1980, the top court upheld a Sapporo High Court decision that recognized a Hokkaido Shimbun reporter¡Çs refusal to testify in relation to a news source. The Oct. 3 ruling clearly specified the criteria for legitimate protection of the identity of news sources. Namely, the top court defined news sources as ¡Èprofessional secrets¡É protected by the Civil Procedure Code, which allows witnesses to refuse to testify, specifying that refusing to testify is allowed only on matters related to secrets that deserve protection.
The top court also said that whether the secrets deserve protection should be determined by assessing the damage that could arise from disclosure with respect to the right to a fair trial. In this specific case, the top court emphasized the significance of the freedom of the press and of newsgathering guaranteed under Article 21 of the Constitution. The court ruled that concealing the identity of a news source is essential to ensuring the freedom to gather news and has real value for society.
As criteria for a legitimate refusal to testify in relation to a news source, the top court specified the following points:
1) The news reporting must pertain to the public interest;
2) The means of news gathering cannot violate general punitive laws and the news sources must not have consented to the disclosure of secrets; and
3) The civil case at hand must be a serious case of major social significance or with grave social repercussions, in which it is deemed indispensable to obtain testimonies for the realization of a fair trial.
The top court said that so long as these conditions are met, refusing to reveal news sources deserves protection and a reporter is allowed to refuse to testify.
Regarding the civil suit filed by the U.S. food maker, the top court said it is not apparent that the case was of major social significance or had social repercussions and the testimony in relation to news sources would therefore not be indispensable for holding a fair trial.
Kojiro Shiraishi, representative of the NSK Editorial Affairs Committee and managing editor of the Yomiuri Shimbun¡Çs Tokyo Head Office, issued a statement, applauding the top court ruling. ¡ÈAnonymity with respect to news sources is a fundamental principle of news reporting. We will stick to this principle under all circumstances,¡É he said. At the same time, Shiraishi expressed concern about ambiguity in the ruling that might leave room for a denial of the right to conceal news sources.
In another case, the Supreme Court said an Oct. 17 case involving a Yomiuri Shimbun reporter was identical with the Oct. 3 ruling and said the Tokyo High Court decision justified the reporter's refusal to talk.
In that case, the Tokyo High Court in June overturned a Tokyo District Court decision made in March that sought to limit a reporter¡Çs right to refuse to testify, and ruled that a reporter¡Çs refusal is justifiable in the public interest of ensuring a free flow of information to the general public. The ruling endorsed the reporter¡Çs refusal to answer any of 21 questions that could directly or indirectly identify their source. The questions included some pertaining to the identities and the number of sources as well as the organizations to which the sources belonged. With the top court decision upholding the high court decision, reporters can now refuse to answer any such questions.
NHK and the Yomiuri Shimbun each issued a statement welcoming the top court ruling.