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«Throughout the postwar era, scandals in the broadcasting industry have invari- ably aroused calls for stricter regulation of the media. In 2007, the ...»

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Stipulations on Programming in the Broadcast Law:

The Intersection of Japanese and GHQ Agendas

MURAKAMI Seiichi

Throughout the postwar era, scandals in the broadcasting industry have invari-

ably aroused calls for stricter regulation of the media. In 2007, the occasion

was the revelation that the program Hakkutsu! Aru aru daijiten 2 (known as

“Encylopedia for Living” in English, a program featuring useful lifestyle top-

ics), produced by Kansai Telecasting Corporation, had presented falsified data as evidence of the supposed weight-loss properties of natto (made from fer- mented soybeans). In the wake of the scandal, a bill to amend the Broadcast Law was submitted to the Diet with new provisions aimed at empowering the government to take administrative measures against companies that broadcast fabricated content—specifically, requiring them to submit written plans for preventing recurrence of such wrongdoing. Although the portion of the pro- posed amendment stipulating such measures was eventually deleted during Diet deliberations, the proposal was part of a consistent trend toward tighter government regulation on broadcasting in recent years. Counting major cases alone, since 1985 there have been 30 instances of “administrative guidance,” or government intervention, concerning the content of broadcast programs by either the Ministry of Posts and Telecommunications or its successor the Ministry of Internal Affairs and Telecommunications.1

THE STIPULATIONS ON PROGRAMMING

Among the legal grounds for such government intervention are four stipula- tions on programming set forth in the Broadcast Law in Article 3-2(1), which states that broadcasters (i) shall not disturb public security and good morals and manners (the public security and morals principle); (ii) shall be political- ly impartial (the political impartiality principle); (iii) shall broadcast news without distorting facts (the veracity principle); and (iv) as regards controver- sial issues, shall clarify the point of issue from as many angles as possible (the 1 Shimizu Naoki, “Hoso bangumi no kisei no arikata” [Regulation of Broadcast Programs], Chosa to joho Issue Brief 597 (October 2007), p. 5.

133 134 MURAKAMI SEIICHI multiple-viewpoints principle). These constitute the basic principles of regu- lation applicable across the board to all broadcast media, whether operating via terrestrial wave (radio and television), broadcast satellite (BS), communi- cations satellite (CS), cable television, or IP multicast.2 Initially, however, there was little consensus that the Broadcast Law would be imbued with these four principles, as is evident from the circumstances of the law’s drafting during the Allied Occupation of Japan (1945–52). The process by which the law was formulated and enacted extended over three and a half years, beginning in November 1946 and ending with the enactment of the Three Radio Laws (the Broadcast Law, the Radio Law, and the Law for Establishment of a Radio Regulatory Commission) in April 1950.

Of the four stipulations on compiling broadcasting, the two regarding, respectively, political impartiality and multiple viewpoints—essentially corresponding to the “fairness doctrine” insisted on by the General Headquarters of the Supreme Commander for the Allied Powers (GHQ/SCAP)—were included in the drafts of the legislation at a relatively early stage. The other two came later; in particular, the stipulation on public security was added at the last minute by authorities on the Japanese side who wanted a legal footing for regulating program content. Even in terms of the content—political neutrality and multiple viewpoints on the one hand and public security and veracity on the other—the two pairs of stipulations spring from essentially different kinds of principles. In particular, the stipulation on public security, which strongly suggests government intervention, has frequently been cited as compromising the spirit of the Constitution.

Nonetheless, since the enactment of the Broadcast Law in 1950, these four provisions have been treated as a set, and the scope of their application has been widened, mutatis mutandis, with the emergence of each new broadcast media. In their interpretation, furthermore, whereas at first these stipulations were generally regarded as matters of ethics, thereafter they gradually came to be seen more as grounds for government regulation, and have often been invoked in cases of administrative guidance.

In Masu media hoseisakushi kenkyu [The History of Legal Policy on the Mass Media], Uchikawa Yoshimi discusses the process by which the four stipulations were formulated in the overall context of the Three Radio Laws.

Regarding such principles as that of political impartiality, he suggests that American ideals of fairness influenced the lawmaking process. Other previous research in this area includes a study by Shimizu Mikio that traces the course

–  –  –

of Diet debate about the stipulations on programming3 and numerous studies about their legal status. Nonetheless, given the extended process of the Broadcast Law’s drafting (three and a half years), as well as the fact that those deliberations took place under the peculiar circumstances of the Occupation and involved a complex interplay of the different agendas of the Japanese authorities and GHQ, it is fair to say that research in this field has yet to fully elucidate the process that gave rise to these stipulations.





Efforts are currently under way to draft an Information and Communications Law (tentative title) that will unify existing laws on communications and broadcasting. In the process of formulating the new law, and in connection with the current stipulations on programming, considerable attention is expected to focus on what regulations will apply to which media. In anticipation of such deliberations, my aim in the present paper is to review the process by which the current stipulations on programming were established, examine how their principles were molded from quite different kinds of tenets, and consider how legitimate they are.

NO PROVISION ON “PUBLIC SECURITY” In prewar Japan, government control of the airwaves had been based on the Wireless Telegraphy Law, established in 1915. But the law had covered broadcasting only as part of provisions for the general category of privately owned radiotelephone facilities; for regulation of broadcasting activity the law had given the communications minister wide-ranging discretionary powers. In October 1946, deeming this situation to be inconsistent with the spirit of the new Constitution of Japan, GHQ’s Civil Communications Section (CCS) directed the Ministry of Communications to revise communications-related legislation keeping three basic aims in mind: (a) to bring such laws into line with the new Constitution; (b) to fully democratize the communications field and permanently eradicate from it all vestiges of military control and influence; and (c) to revise and modernize outdated regulatory provisions.4 Accordingly, in November the ministry established a provisional legislative council chaired by the vice-minister and set about revising the relevant legislation.

3 Shimizu Mikio, “Hoso no jiritsusei no kakuho o megutte: Kokkai ni okeru ‘hoso no kokyosei’ giron no hensen (Showa 22 nen kara Showa 35 nen made)” [Ensuring Autonomy of Broadcasting: Changes in Discourse on the “Public Nature of Broadcasting” in Diet Debate (1947–1960)], Hoso kenkyu to chosa (March 1997), pp. 2–17.

4 Sho Hiroshi, Matsuda Eiichi, and Murai Shuichi, Denpa Ho, Hoso Ho, Denpa Kanri Iinkai Setchi Ho shokai [Detailed Commentary on the Radio Law, the Broadcast Law, and the Law for Establishment of a Radio Regulatory Commission], Nisshin Shuppan, 1950, p. 7.

136 MURAKAMI SEIICHI Thus began the process of review and study for Japan’s postwar laws on radio communications and broadcasting.

Initial Focus on “Fairness” and “Political Impartiality” Working to incorporate all provisions for radio communications and broadcasting into a single law, the communications ministry compiled the first draft revision of the Wireless Telegraphy Law in February 1947 and the second draft revision in April the same year. However, after the CCS revealed its intention to give Nippon Hoso Kyokai (NHK; Japan Broadcasting Corporation) a monopoly on medium-wave broadcasting, provisions regarding NHK were formulated separately from the draft revisions and it was decided that two laws would be drawn up, one for radio communications and one specifically for NHK.5 The draft law concerning NHK that was formulated in June 1947 was Japan’s first bill for a separate law specifically for broadcasting.

As no documentation has survived on the individual articles of the NHK bill, for reference we rely on the outline provided in a secondary source from around that time (see footnote 4). As extracted from that source, the sections of the bill relevant to what would become the stipulations on programming

were as follows:

1. The purpose of the Corporation [NHK] shall be to provide, as a public organ of the society and by means of medium-wave radiotelegraphy, broadcasts to a public audience on current events, education and learning, entertainment, and other matters, with comprehensive fairness and at the lowest possible reception fee, and thereby contribute to the national culture.

11. In view of the social significance of broadcasting operations, the Corporation’s broadcast programming must be free of bias.

12. To compensate for deficiencies stemming from its monopoly of the broadcasting and radiotelephony services, the Corporation must exert its best efforts in its broadcast programming and take measures to achieve the same results as it would were there competitors in that business.

–  –  –

The bill thus included provisions corresponding to elements of the eventual stipulations on programming, such as that NHK must conduct broadcasts

–  –  –

“with comprehensive fairness” and that its programming “must be free of bias.” On the other hand, at that stage the principles of “public security” and “veracity” seem not to have been explicit or even regarded as important elements.

This bill was formulated on the understanding that NHK would retain its existing form as an incorporated association (shadan hojin), but it was subsequently concluded that it was not appropriate for 6,500 members of an incorporated association to own and operate a broadcasting enterprise exerting great influence on the lives of the general public. Accordingly, in July 1947, the month immediately after the NHK bill was drafted, the draft was replaced by a new draft for a broadcasting enterprise that drew from Australia’s Broadcasting Act of 1942, regarded at that time as the most advanced legislation of its kind.7 The parts of the new draft that anticipated the stipulations on

programming were as follows:

Chapter I. General Provisions

1. The purpose of this law is to put into operation a broadcasting enterprise conducted for the common good of the society and to enable it to fulfill its mission as a public organ of the society.

2. The term “broadcasting enterprise” refers to an enterprise providing broadcasts to the general public on current events, education and learning, entertainment, or other matters by means of radio equipment or fixed-wire telegraphy or telephony.

3. The broadcast programming must be impartial.

4. Employees of the broadcasting enterprise must not broadcast their own opinions concerning the news....

–  –  –

This bill aimed at an organizational reform whereby a public agency, to be called the Nippon Hoso Iinkai (Japan Broadcasting Commission), would be established and granted a monopoly on medium-wave broadcasting. In terms of the controls it placed on broadcasting, however, this bill represented little change from the previous one; although it used different expressions, such as “impartiality” and “must not broadcast their own opinions,” in substance these amounted to the same doctrine of fairness as seen earlier.

7 Sho et al., Denpa Ho, p. 22.

8 Sho et al., Denpa Ho, pp. 22–25.

138 MURAKAMI SEIICHI GHQ Also Calls for “Freedom of Broadcasting” and “Impartiality” While the Ministry of Communications was drafting these bills, the CCS conducted its own study on what rules should be incorporated into a new basic law on broadcasting. An account of that review process is given in an internal memorandum compiled from August to September 1947 by Victor Hauge of the CCS Broadcasting Division, titled “Implementation of Policies Relating to Japanese Broadcasting” (hereafter referred to as the Hauge Memorandum, as in previous scholarship).9 On October 16, 1947, the CCS prepared the “Memorandum for Record Concerning Conference Outlining SCAP’s General Suggestions with Respect to a Japanese Broadcasting Law” (referred to in records as the Feissner Memorandum), which announced the policy of reforming Japanese broadcasting into a dual system of public and commercial broadcasters. Compiled prior to the Feissner Memorandum, the Hauge Memorandum describes the state of GHQ deliberations concerning operators and supervisory and regulatory bodies in the broadcasting business and also provides insight into CCS thinking on basic rules for broadcast programs. An entry in the Hauge memo from August reveals that at that point the CCS was considering the following

six elements as general principles for regulating broadcasting:

–  –  –

In addition to the stipulation on “impartiality,” this memo sets out principles similar to that on public security and morals, expressed here as the need for observance of “moral standards” and “law and order.” It thus indicates that stipulations similar to what would eventually be included in today’s Broadcast

–  –  –

Law were being considered at that stage of the process. Items d and e in the

above list were accompanied by the following elaborations:

d. Observance of moral standards The law should, of course, state specific prohibitions against dissemination of obscene, profane, libelous or other morally degrading or disgraceful matter.



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