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SLAPP-happy: Freedom of speech under threat in Japan

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By Hiro Ugaya

You’re relaxing at home one night when the telephone rings. The caller is a magazine editor who you haven’t met before. He says that he got your details from an editor you know, and asks if you could help with an article that he’s writing. There isn’t any money in it, but all the same, you answer his questions in good faith.

The following day, you learn that you’re going to have “comments” that you never even made attributed to you in the article. Shocked, you complain to the editorial department, but are told that the deadline has already passed and then ignored.

A few months later, the company that was criticized in the article files a defamation suit against you, demanding 50 million yen in damages. Surprisingly, neither the editor who wrote the article nor the magazine’s publisher is included among the accused. You are dragged through the courts on account of “comments” that you never made, and asked to explain “comments” that you never even thought. The judge doesn’t pay any attention to your defense, and orders you to pay 1 million yen. For 33 months, your life is destroyed by these false charges. Unable to work, with reduced income and legal costs to pay, the damage you’re caused runs to somewhere in the region of 10 million yen.

What I’ve just written may sound like something out of Franz Kafka’s "The Trial." You may even find it too implausible to believe. But it isn’t fiction. In November 2006, long-running music chart compiler Oricon filed a civil lawsuit against me, and that’s a summary of what happened.

After a bitter courtroom fight, the trial came to a close on Aug 3, when Oricon unilaterally abandoned its claim while it was on appeal at the Tokyo High Court. In Japan, the abandonment of a civil lawsuit is equivalent to an admission of defeat. Unlike the withdrawal of a lawsuit, it is a rare occurrence, resulting in the closure of less than 0.1% of trials each year. For Oricon, it was the worst possible outcome — a dishonorable hara-kiri. If you want a war metaphor, it was like an army invading your country, only to suddenly raise a white flag and kill themselves. The battle to defend my country ended in victory.

Still, this isn’t cause for celebration. There’s no way of undoing the mental and financial damage I incurred over those 33 hard months. Cyzo, the magazine which twisted my words in an article questioning the methods Oricon uses to compile its rankings, has promised to pay me 5 million yen as an apology, but that only covers half of the damage.

As for Oricon, their whole purpose was to saddle me with legal costs and silence critical articles, so it may not matter to them whether the lawsuit succeeded or failed. This is what’s called a SLAPP (Strategic Lawsuit Against Public Participation) suit in English. More than 25 states and territories in the U.S. have legal measures in place to provide protection against such lawsuits.

Yet I discovered through my experience that the term SLAPP doesn’t exist in Japanese literature, let alone in Japanese law. This means, of course, that lawyers and legal scholars don’t operate on the assumption that civil lawsuits could be used to silence public speech. There isn’t even a law against improper litigation, and if you file a claim against such an abusive lawsuit, the court normally won’t recognize it.

In the past couple of years, there have been SLAPP suits for between 10 million and 20 million yen filed against a whistleblower who accused a bank of internal fraud in the media, and residents who put up signs in their own windows to protest against the construction of an apartment building. There is a loophole in Japanese law that allows the stronger members of society (large corporations, the government, municipalities and the wealthy) to use lawsuits as a way of attacking the weak.

The past 33 months have been a long, hard slog, but it wasn’t all bad. I’ve been shown my life’s work as a journalist—namely, to expose the threat that SLAPP suits pose to freedom of speech. I’d like to go the U.S., for instance to California, and conduct interviews with experts on SLAPP suits, lawyers, scholars and NPOs, then write a book. As a journalist, I have to warn society that the Age of SLAPP has arrived in Japan too.

This commentary originally appeared in Metropolis magazine (www.metropolis.co.jp).

© Japan Today

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11 Comments
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Wow Hiro, I'm sorry that this happened to you. Thank you so much for the information. If I ever get one of these calls, I will have a "Kekkou desu" ready.

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There is a loophole in Japanese law that allows the stronger members of society (large corporations, the government, municipalities and the wealthy) to use lawsuits as a way of attacking the weak.

feel sorry for the writer but the above is SOP in Jpn always has been & unlikely to change, Jpn has NEVER even remotely had free speech or an even handed justice system, the little people are all pretty much utterly defenseless in these situation, the only thing we can do if it gets bad enough for us is to flee & hope we escape, its pretty much impossible to expect any hope of fair treatment in many aspects of life here as mere individuals

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I've been asked to make remarks by Japanese reporters a few times. I made them in Japanese, and when I saw their published results, I found they had been extensively altered to tailor my remarks to support the premise of the story. Only once did a publication -- at my insistence -- show me what my quote would contain by faxing me the proof of that page. Even then the degree of accuracy was borderline. I've learned from sad experience to never speak to a Japanese reporter without recording my conversations. (It serves notice to the reporter that if he alters what I say I'll be coming after him.) Even then the ones who think they can get away with it will try to do so. All they care about is meeting their deadline. Perhaps, Mr. Ugaya, Cyzo's altering of your remarks was not merely due to a slip-up in the editorial process, as has been claimed, but was typical of the slipshod reporting that passes for journalism in this country every day.

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I am surprised. Doesnt the accuser have to present evidence such as recorded interview, or an e-mail containing the comments or at least confirming them, .... for such a claim? If so, they may accuse you of the comments that you never made, even if there were no comments to start with! How does this work in a court room?!

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I've never been sued in Japan, but I have been sued in Canada. Often (as was my case) an accuser doesn't have any realistic expectation of winning at all. Their intent is intimidation. In my case an ex-employer (from whom I had quit) sued me for breach of contract. They said that I had agreed not to work for one of their customers. Such a thing was never in my contract, nor had we ever discussed it. Nevertheless they sued me for $30,000. Then they said they could make the lawsuit go away for a smaller amount.

You see, defending yourself in a lawsuit is expensive and time consuming. Often while you are being sued, you are unable to find a job, since you are considered "risky". The accuser is thus able to extort money, or whatever else they want. You simply can't afford to defend yourself (or the extortion money is cheaper than defending yourself). Luckily, in my case, my new employer was a large multi-national with a huge team of lawyers. They made the accuser go away without the need to pay them...

With SLAPP the idea is to intimidate people into making certain statements, or refraining from making statements. Anti-SLAPP legislation is there to ensure that frivolous lawsuits can't be brought against people merely to silence them. Defending yourself from a frivolous lawsuit is nearly as expensive as defending yourself from a reasonable lawsuit, and so it is usually in your best interest to shut up, or say whatever the accuser wants you to say, or pay them money, or give them a lapdance... whatever.

Having said all that, there are two things that confuse me. First, I fail to see how this was a SLAPP case. The author claims not to have made the comments in the first place. He doesn't claim that he was being silenced, or that the comments weren't libelous. Thus I really don't think anti-SLAPP legislation in the US would have helped him.

Second, while anti-SLAPP is a good thing, the whole civil lawsuit situation is screwed up. The ability to use a lawsuit to extort things from people who have no protection is wrong. SLAPP is a tiny piece of the problem (anti-SLAPP wouldn't have helped me, for instance). Why focus on such an insignificant thing?

Anyway, none of this amounts to legal advice. I am not a lawyer. Etc, etc...

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Dude, get a better lawyer.

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Very interesting article. Maybe this is one of the reasons why there might be fewer lawsuits in this country than in others?

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I agree with ultradodgy. Get a better lawyer!!

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Freedom of speech? In Japan? Try saying "I don't really like fish, I prefer meat" and see how much leeway you get.

You are entirely free to say what you are expected to say. Make any challenge and consider your copybook blotted.

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What proof is there that these comments were altered? Is there a recording of the original conversation? I find it hard to believe this guy. Businesses have too much to risk to be dishonest in what they publish. Freelancers, on the other hand, have an easy time launching accusations that they have been misquoted.

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As Mikekchar says - how is this SLAPP? It points out that SLAPP can happen, but in this case, it seems the OP has been represented as saying something they did not, then had a case raised against them. The OP it seems needs to then sue the publisher for whatever to recover costs.

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