Washington International Law Journal


Rebecca Carlson translated the court opinion.


Is Japan a “paradise for the press?” Or is robust discourse on matters of public interest in Japan stifled because of defamation laws that heavily favor the plaintiff? Kamakami v. Sakurai, as one of the final events in Japan’s HIV-tainted blood scandal, is a provocative and illustrative chapter in the freedom of press and defamation law in Japan. In the early 1980s, hemophiliacs faced an HIV epidemic. When researchers concluded the HIV virus could be transferred by blood, they recognized that the blood products created from plasma pooled from hundreds of donors used to treat hemophiliacs could carry the HIV virus. Clinical trials soon proved that the HIV virus could be deactivated through a heating process. But in Japan, later investigations revealed delays in clinical trials and in recalls of potentially tainted products by both pharmaceutical companies and the government. Multiple prosecutions and convictions for criminal negligence followed this scandal. Freelance journalist Yoshiko Sakurai not only followed the investigations, but conducted her own. Based on her extensive research, she published a magazine article and a best-selling book on what has become known as the HIV-tainted blood scandal in Japan. In these publications, Sakurai accused Dr. Takeshi Abe, a highly respected hemophilia specialist and government advisor, of intentionally delaying the clinical trials the pharmaceutical companies commissioned him to conduct for personal monetary gain. Two years after the book’s publication, authorities arrested and prosecuted Dr. Abe for professional negligence and Dr. Abe filed a defamation case against Sakurai based on several statements in the article and book. The unanimous Supreme Court decision handed down in Sakurai’s favor, translated below, is significant for what is said, but also for what was left unsaid. Sakurai was ultimately justified in her journalism as the Supreme Court unanimously ruled in her favor. However, while it would not be unusual in a similar case in the United States to have commentary on the ruling supporting the freedom of the press, in this case the absence of such language is noteworthy, despite the constitutional right of freedom of the press in Japan having been an integral part of Sakurai’s case. In Japan, in a defamation case involving a matter of public interest, once the plaintiff establishes injury to reputation (or more accurately, honor), the burden shifts to the defendant to prove the truth of the statement, or adequate reason to believe the truth of the statement at the time of publication. Here, the Court chronicled in detail the advances in HIV-AIDS research, the actions of Dr. Abe during the clinical trials, and Sakurai’s research efforts prior to publication. Based on these findings, the Court then decided that there was adequate reason to believe the truth of Sakurai’s statements of fact in her publications, and that the statements constituted a valid opinion or commentary based on those facts. One can analyze this case in at least two different ways. On the one hand, Japanese defamation law, as is, does in fact provide sufficient protection for truly robust debate and criticism with an objective test applicable even to the most highly charged situations. Indeed, the Supreme Court could have labeled Sakurai’s statements as defamatory personal attacks instead of a validating them as opinions or commentaries. But the court did not consider the statements defamatory despite the damage to reputation because they were based on facts that could be believed to be true. As Sakurai said of this case after the Supreme Court handed down its decision: “[o]ne aspect of the case was that it threatened to restrict the freedom of reporting. This ruling is a joyous event not just for those involved in the HIV-AIDS scandal but for all involved in journalism in Japan.” On the other hand, Kawakami v. Sakurai also illustrates the potentially tenuous or limited nature of freedom of the press in Japan. “Harsh” critical journalism is comparatively uncommon in Japan, and commentators have argued that this may be a result of the legal standards on defamation. The Supreme Court did not use the broader constitutional rights of freedom of press and freedom of conscience to justify the statements of opinion in its analysis. Instead, the fight to justify such statements was arduous, and victory was uncertain: Sakurai lost at the appellate level on the exact same legal test she won on in the Supreme Court. Seen from this perspective, Kawakami v. Sakurai raises doubts as to whether Japanese defamation law alone adequately protects journalists who criticize distinguished members of the public.

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