The Tokyo High Court on Jan. 29 ruled in favor of an appeal by a women’s rights group over the alleged alteration of a documentary on Japan’s wartime sex slaves, or comfort women. The plaintiffs had demanded that NHK and two production companies pay the women 40 million yen in damages.

The presiding high court judge said NHK modified the program based on pressure from politicians and others, thereby breaching obligations to the plaintiffs. The high court ruling overturned a lower court decision, and ordered one production company to pay 1 million yen in compensation, and NHK and two production companies to pay 2 million.

NHK has appealed the ruling to the supreme court, saying the ruling imposes undue restrictions on the media's right to edit reports.

At issue was the documentary, “How to apply justice to war - to wartime violence,” which NHK aired in 2001. NHK had its subsidiary NHK Enterprises 21 Inc. produce the content and an NHK subcontracted production firm, Documentary Japan Inc., collected materials for the program. The program focused on a mock tribunal judging Japan’s wartime use of so-called comfort women as sex slaves. The tribunal was organized by the nongovernmental organization Violence Against Women in War - Network Japan (VAWW-NET Japan).

The NGO said it expected the content of the program to fully reflect the proceedings of the mock tribunal and gave the defendants many favors and other help. But the content aired was substantially altered from the original aim of the program, the NGO argued. The media defendants said they had no obligation to create the content of the program in line with expectations of news sources or collaborators, adding that imposition of such an obligation on the media is intolerable in terms of the freedom to edit news contents.”

In the Jan. 29 ruling, the presiding judge at the Tokyo High Court said the freedom to edit is constitutionally guaranteed and the editing or creation of programs must not be made subject to illegitimate constraints. However, the presiding judge pointed to a difference between ordinary news programs and documentary programs. In documentary programs, it is a matter of great concern for news sources and other collaborators to know how their opinions or activities will appear in the program, the judge said. If, due to “special circumstances,” news sources or collaborators hold expectations regarding content, their expectations should be legally protected,” the ruling said.

In specific, the ruling referred to the fact that NHK’s subcontractor, Documentary Japan, gave the NGO detailed explanations in advance about the expected content of the program and worked in close collaboration with the NGO in the coverage of the mock tribunal. It also said the NGO gave full-fledged cooperation to the production company -- factors that constitute “special circumstances.”

The high court ruling says changes to the content were made independently of the producers' policy, at the instruction of higher-ranking NHK officials, after politicians had complained about alleged impartiality. The court concluded that the editing process “amounted to an abuse of and deviation from the constitutionally guaranteed right to edit”.

The ruling also said the producers and reporters of a program to be broadcast should be similarly held accountable to news sources and other collaborators with respect to contents or alterations. It said that in this case, NHK and the two production firms breached an obligation to explain any alteration of the content to the NGO. On NHK’s argument that such accountability would impede the freedom of news reporting, the ruling said the defendants' actions leading up to the alteration of the contents was tantamount to waiving their own right to edit at their own will. In this particular case, its ruling enforcing accountability won’t amount to an infringement of the freedom of news reporting, it said.

On the complaint by the NGO that politicians had directly interfered, the ruling said there is no evidence to substantiate the allegation that politicians had made specific suggestions or instructions to the media defendants.

Upon hearing the high court ruling, NHK issued a statement, taking issue with what it called the “one-sided” claim that NHK had abused and deviated from the right to edit and altered the content in consideration of politicians’ views. “We edited the content from an impartial standpoint and we cannot accept this court ruling,” it said.

Opinion varied on High Court ruling

Experts differ in their views of the Jan. 29 Tokyo High Court ruling, which effectively gave legal protection, although qualified, to the subjects of media reports in such a manner as to give them a say in editorial decisions.

Representative attorney Seigo Iida for the plaintiffs said the lawsuit might well may be the first of a kind. He said that there had never before been a dispute over the media’s accountability to news sources or collaborators.

Some experts expressed concern that giving news sources too much say in editorial content would greatly restrict the media. Some complained that the legal protection for news sources was too loosely defined as the high court ruling only referred to it as “under special circumstances.”

An academic said the high court ruling merely exposed NHK’s lack of self-discipline and should be regarded as an exceptional case. He said the right to harbor expectations on the part of news sources or collaborators regarding editorial contents should premise mutual trust. He said that in this case, the NGO provided a great deal of help to NHK as a collaborator in the project.

Another academic said the high court ruling itself is a sign of NHK’s particular problems and should not be generalized. If it applies to newspapers, he warned that such expectations might also be insisted upon in the case of special supplements.

He therefore asserted that it is solely up to the media to determine to what extent they explain or promise anything to collaborators about the final shape of a report. “It might happen that the media give promises about contents if the cooperation is indispensable. But the media should have the choice not to contact or cover certain sources, if their right to edit is endangered,” he said.

On the other hand, one documentary writer warned that any right to expectations on the part of news sources or collaborators would limit the freedom of expression. The writer said there could be a case in which the media would have to report even by breaching confidence with sources, adding that ethics and social norms are not necessarily the ultimate criteria for the media to achieve freedom of expression.

There are many who question the court ruling’s reference to “special circumstances” as criteria for the media to honor collaborators’ expectations on editorial content.

In a recent series of lawsuits in which the non-disclosure of news sources by the media was at issue, the freedom of news reporting and newsgathering was given precedence to the conduct of a just trial. In this context, one expert criticized the high court ruling for taking a balanced approach to the media’s freedom to edit and the restrictive rights of news sources. “Such rights on the part of news sources should only be honored when the media side makes explicit promises,” he added.

The plaintiffs recognize the ruling bears an aspect of a double-edged sword. It is worrying to know that politicians might abuse the ruling to pressure the media to alter editorial contents. However, the attorneys for the plaintiffs called on the media to accept the ruling in earnest and to continue serious debate on what factors should constitute “special circumstances.”