Opinion Calling for the Retraction of the Government’s View Concerning “Political Fairness” in the Broadcast Law, and the Guarantee of the Freedom of the Press
April 14, 2016
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (JFBA) prepared its "Opinion Calling for the Retraction of the Government’s View Concerning ‘Political Fairness’ in the Broadcast Law, and the Guarantee of the Freedom of the Press" (the "Opinion") on April 14, 2016, and submitted it to the Minister of Internal Affairs and Communications on April 27, 2016.
Outline of the Opinion
Regarding broadcasters' programs, the government cannot be allowed to make its own judgment as to conformance with Article 4-1(ii) of the Broadcast Law, which stipulates that broadcasters "shall be politically fair" ("Political Fairness"), and thereby issue administrative advice to broadcasters, or take administrative measures to stop radio facilities under Article 76 of the Radio Act. These are impermissible acts in violation of broadcasters' freedom of the press.
- The government should retract its official view as it contradicts the above perspective, and should respect broadcasters' autonomous efforts to establish broadcast ethics.
Reasons for the Opinion (Summary)
Response by the Minister of Internal Affairs and Communications, unified view of the government, etc.
At the meeting of the House of Representatives Budget Committee on Feb. 8 and 9, 2016, Sanae Takaichi, the Minister of Internal Affairs and Communications, mentioned in regard to the Political Fairness stipulated in Article 4-1(ii) of the Broadcast Law, that the government may issue administrative advice on the broadcaster's violation of Article 4 of the Broadcast Law for failing to ensure Political Fairness even within one program. She said that there could be an extreme case, for example, where a program is edited in a manner of evident aberration from Political Fairness such as when a controversial political topic polarizing the public opinion is dealt with by approaching the topic mostly from one side of political opinion and repeatedly presenting its supporting views while barely picking up the other side. In such a case, if no improvement is seen thereafter, the government may take administrative measures to stop radio facilities of the broadcaster under Article 76 of the Radio Act ("Communications Minister's Response").
On 12th of the same month, the Ministry of Internal Affairs and Communications ("MIAC") announced the unified government view on the interpretation of the Political Fairness in Article 4-1(ii) of the Broadcast Law. According to this view, "there would be no change in the interpretation that 'Political Fairness should be evaluated' not from one program but 'from the overall programming of broadcasters as conventionally accepted." However, MIAC added that since "the overall programming" is "the collection of each program, it is natural to make an evaluation from seeing each program," hence, "even within one program," "there could be an extreme case, for example, where a program is edited in a manner of evident aberration from Political Fairness"citing directly from the Communications Minister's Response. MIAC explained that the Communications Minister just offered a general perspective that Political Fairness is not ensured in such a case, and positioned the Communications Minister’s Response as a supplemental clarification of the traditional interpretation that "Political Fairness should be evaluated from the overall programming" ("Government View").
Furthermore, by admissive remarks about the Communications Minister's Response by Prime Minister Abe and Chief Cabinet Secretary Suga, it was made clear that the Communications Minister's Response was a unified view of the government.
The legal nature of Article 4-1 of the Broadcast Law and problems caused when the government evaluates the Political Fairness, and thereby takes an administrative measure such as stopping radio facilities
i) Purpose of the Broadcast Law, and the interpretation of Article 4-1
As part of the freedom of expression guaranteed under Article 21-1 of the Constitution, the citizen's right to know is guaranteed as recipients of expression, and so is the freedom of the press as news media that supports the citizen's right to know.
In accordance with Article 21-1 of the Constitution, the Broadcast Law assumes that the appropriateness of broadcast programs and broadcasting ethics are autonomously achieved by broadcasters. In other words, it is not expected that Political Fairness and such be achieved through restricting the freedom of the press by the public power.
Considering the superior status of freedom of expression, the restrictions on broadcast contents by the public power should be strictly interpreted so as to be placed only as an inherent constraint for balancing in conjunction with other human rights. From such perspective, since the provisions in Article 4-1 of the Broadcast Law are written very ideologically and abstractly, and therefore difficult to uniformly interpret as criteria, they cannot be used as grounds for allowing the public power to regulate broadcasters.
Consequently, it is obvious that Article 4-1 of the Broadcast Law serves not as the regulatory standards for the government to regulate broadcasters, but as the autonomous ethical standards for broadcaster to accomplish the purpose of achieving freedom of expression under the Broadcast law. It means that the government is not expected to make any judgment on the presence of Political Fairness or make any administrative advice or measures thereby.
ii) Problems caused when the government evaluates Political Fairness and stops radio facilities of broadcasters
If the government is allowed to evaluate the Political Fairness in Article 4-1(ii) of the Broadcast Law as in the Government View, it also makes it possible for the government to deliberately pick a program which expresses a critical view against a political issue raised by the government and arbitrarily judge it as lacking Political Fairness.
With much regret that critical views against the government had been oppressed by the government in prewar times and people had not been allowed to openly criticize the government, the free exchange of varied opinions, including critical views, should be respected as a key element of democracy. If the government is allowed to determine the Political Fairness of political issues and give administrative advice to broadcasters thereby, and takes a further measure to stop radio facilities of broadcasters, it would conflict with the broadcasters' freedom of the press under Article 21-1 of the Constitution.
If the "radio facilities stop" can be conducted according to the determination of a lack of Political Fairness by the government, considering the grave consequences, compared with censorship, where broadcasting of not only a specific program but all the subsequent programs shall be stopped, the level of infringement of the freedom of the press is immeasurable.
Therefore, the Government View must be retracted immediately, or not only will the independence of broadcasters stipulated in Article 1 of the Broadcast Law could be violated, but a further situation might occur where the freedom of expression and the freedom of the press guaranteed under Article 21-1 of the Constitution will also be violated by the government's arbitrary judgment.
Problems caused by judging Political Fairness by only one program
The Government View which admits a possibility that the lack of Political Fairness could be judged by one program is obviously in conflict with the conventional interpretation that Political Fairness shall be judged not by any one single program but by looking at a series of programs as a whole. The Government View is totally unacceptable, since it will further cause broadcasters to wither.
In other words, Political Fairness cannot be judged simply by numerical criteria or time represented in numbers such as whether the pros and cons of arguments are treated equally in time or whether all opinions are equally taken up. If such criteria are applied in one program, under such constraints of time allocation, each program could be edited just by assigning the time equally to the pros and the cons without digging deeper.
Given this situation, the production of programs could be far less creative, and furthermore, the mission for broadcasters to contribute to healthy policy debate by including critical views against government policies, as well as the mission to watch public power, might be hampered. That means that it could lead to the deprivation of the public’s right to know as the recipient of broadcasting.
In the presidential statements published regarding the amendment of the Broadcast Law on March 28 and December 21, 2007, the JFBA expressed its opposition to the intervention by the government into the content of broadcasts, and requested that broadcasters should solve ethical problems autonomously under the supervision of the autonomous third-party organization the Broadcasting Ethics & Program Improvement Organization (BPO).
In addition, at the 52nd JFBA Convention on the Protection of Human Rights in 2009, the JFBA called for the establishment of a system to prevent the government from interfering with the broadcast administration, and adopted a declaration which states that "[g]uaranteeing the right to know, especially concerning monitoring the government, cannot be realized without the media’s freedom of the press," and that the government should "establish a system to separate the administration of broadcasting from the government" "to fully guarantee citizens’ right to know" from the consideration of "the present situation where MIAC overuses administrative advice on the content of broadcasts."
Furthermore, the "Statement Calling for Respect for Freedom of the Press," issued on July 24th, 2015, pointed out that "broadcasters should exhibit self-discipline by performing broadcasting 'without distorting the facts,' as stipulated in Article 4-1(iii) of the Broadcast Law," and urged that the government "respect the self-discipline of broadcasters and the freedom of the press."
For all of these reasons, it is clear that the Government View imposes constraints on broadcasters, and also conflicts with the foundation of constitutional democracy which lies in the freedom of expression and the freedom of the press firmly guaranteed under Article 21-1, which serves as the protection of a ground and mechanism for a healthy democracy.
Therefore, the JFBA hereby makes an appeal as stated in the Outline of the Opinion that the government retract its official view and respect the autonomy of broadcasters.