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Japan's 2013 State Secrecy Act – The Abe Administration's Threat to News Reporting 2013
Published online by Cambridge University Press: 14 March 2025
Extract
The “Specially Designated Secrets Protection Law” poses a severe threat to news reporting and press freedom in Japan. Government officials have not shied away from intimidating reporters in the past. The new law will grant them greater power to do so. Passage of the law fulfills a longstanding government objective to gain additional leverage over the news media. The new law could have a withering effect on news reporting and thus on the people's knowledge of the actions of their government.
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References
Notes
* Unless otherwise indicated, all translations from Japanese are by the author.
1 This statute, the tokutei himitsu no hogo ni kansuru hōritsu, was passed into law by the Diet on December 6, 2013.
2 Ohta Masakatsu, tokutei himitsu hogo hōan, janarizumu no kiki da (“The Specially Designated Secrets Protection Law – This is a Crisis for Journalism”) Kochi Shimbun, Nov. 7, 2013 (distributed by Kyodo News).
3 He was charged under Article 111 of the National Government Employees Law, which prohibits instigating or conspiring to produce a leak of secret information. An English translation of the statute (The National Public Service Act, Law No. 120 of 1947) is available here as a PDF.
4 Distracted by the sensational aspects of the case, news organizations did a poor job of focusing on the most important issue. Nishiyama had uncovered information of great value. He showed that the government was lying about the terms of the reversion of Okinawa from the US to Japan. Many years would pass before we would learn that Nishiyama's disclosure of a payment of approximately $ 5 million was only the tip of a much larger iceberg. We now know that the U.S. demanded and received at least $ 650 million in connection with the reversion. This was all concealed from the Japanese people. For details, see Gavan McCormack and Satoko Norimatsu, Resistant Islands – Okinawa Confronts Japan and the United States (Rowman and Littlefield, 2012), especially pp. 58-62.
5 Supreme Court, First Petty Bench, Decision of May 31, 1978.
6 Sandra Coliver shows that, with the important exception of the United States, no major democracies impose such heavy penalties for secrecy violations. See “US prosecution of Snowden and Manning exceeds international norms,” The Guardian, June 26, 2013.
7 See National Government Employees Law, note 3 supra. There are other specialized statutes that mandate greater penalties. Two statutes passed in the 1950's provide penalties of up to ten years in prison related to military secrets received from the United States. 2001 revisions to the Self-Defense Law impose maximum imprisonment of five years per violation for leaks of “defense secrets” (bōei himitsu) designated by authority of the Minister of Defense.
8 Article 3 of the law defines the secrecy power: “Heads of administrative agencies shall designate as ‘Specially Designated Secrets’ non-public information related to the work of their agencies which concerns matters listed in the appendix and is especially necessary to keep secret because release would bring the risk of severe damage to national security.” The appendix lists four broad categories of information: defense, international relations, terrorism countermeasures, and spying on behalf of a foreign power (the statute uses the term “prevention of especially dangerous activities” for this category). These categories are not defined; instead they are described with lists of examples of the types of information covered. The scope of all categories will be decided by government officials.
9 Principles 37 - 47 of the “The Global Principles on National Security and the Right to Information” (“Tshwane Principles”) provide a series of rules to protect “public interest disclosures by public personnel.” There is no such concept in the Specially Designated Secrets Protection Law.
10 American courts have long applied a “strict scrutiny” standard when examining government action that causes a restriction on fundamental rights. The courts of other major democracies have articulated a similar high standard of protection commonly known as the proportionality standard. The Supreme Court of Japan has yet to articulate a comparable rule of law to address such cases. See Craig Martin, “The Japanese Constitution As Law and the Legitimacy of the Supreme Court's Constitutional Decisions: A Response to Matsui,” 88 Wash. L. Rev. 1527 (2011), and Lawrence Repeta, “Restricting Fundamental Rights in Japan – the Role of the Supreme Court,” in Jeff Kingston (ed.) Critical Issues in Contemporary Japan (Routledge Curzon, 2013).
11 The actual penalty issued by the Supreme Court was a suspended sentence of four months in prison.
12 “Japan: ‘Special Secrets Bill threatens transparency’ – UN independent experts”. See also this article at Japan Times.
13 Mr. Larue drew special attention to the penalties established by the law for the release of information, stressing that “government officials who, in good faith, release confidential information on violations of the law, or wrongdoing by public bodies, should be protected against legal sanctions.” “Other individuals, including journalists and civil society representatives, who receive or disseminate classified information because they believe it is in the public interest, should also not be liable to any sanction unless they put individuals in an imminent situation of serious harm,” he said. (Click here for full text.)
14 Id.
15 “Japan: Amend ‘Special Secrets’ Bill to Protect Public Interest – Overbroad Power to Classify Secrets, Criminalize Leakers,” November 25, 2013.
16 “Japan's New State Secrecy Law Threatens Public Accountability,” December 6, 2013, See also, “Statement on the Japanese Government's ‘Designated Secrets Bill’ by John Ralston Saul, PEN International President (nd).
17 The Japan Federation of Bar Associations expressed “strong opposition” to the bill in opinions issued on September 12 and again on September 26. (Click here for full text.)
18 The JCLU was founded in 1947, the year Japan's Constitution took effect. It first announced formal opposition to the secrecy bill on September 17 and followed by sponsoring a series of well-attended “emergency gatherings” (kinkyu shukai) featuring writers and activists who spoke out against bill.
19 The declaration appeared October 11. By October 29, it had attracted 265 signatures, (Link here). See, 秘密保護法案「憲法原理踏みにじる」 学者らが反対声明（朝日新聞), and 秘密保護法案 ２６５人反対 憲法の３原則侵害（東京新聞)
20 秘密保護法の制定に反対する刑事法研究者の声明は以下に掲載されています。 (For a PDF click here.)
21 See the Court's decision in the “Hakata Film Case,” Decision of the Supreme Court, November 26, 1969 (Grand Bench). For a description of the Hakata case in English, see Lawrence W. Beer, Freedom of Expression in Japan (Kodansha, 1984), at 296.
22 This is part of a much longer declaration of the key characteristics and duties of a free press. See: The Canon of Journalism (sic) (Adopted on June 21, 2000).
23 For a recent overview of Japan's news media and practices that enable government agencies and other powerful institutions to manage the news, see David McNeill, “Japan's Contemporary Media,” in Jeff Kingston (ed.) Critical Issues in Contemporary Japan (Routledge, 2013).
24 Freedom House, “2012 Freedom of the Press Data.”
25 Laurie Anne Freeman, Closing the Shop -Information Cartels and Japan's Mass Media (Princeton University Press, 2000), pp.4-5. For a thorough analysis of numerous factors that restrain Japan's mainstream news media from criticizing the government, see Kenta Yamada, 3/11 to media (“3/11 and the Media”), esp. 45-52, (Transview, 2013) (Japanese only).
26 Yasuhiko Tajima, minshushugi no dodai ga kuzusareru (“The foundations of democracy will be destroyed - the future of information and discourse in Japan”) Sekai, Dec. 2013, p. 81.
27 Kenta Yamada, seifu no impei kōzō to shimin to no kairi (“The Structure of Government Cover-ups and Its Divergence from the People”) Sekai, Dec. 2013, p. 90.
28 Constitution Article 98 declares that the Constitution, not laws passed by the Diet, is the supreme law of Japan. Article 81 grants to the Supreme Court the final authority to determine the constitutionality of “any law, order, regulation of official act.”
29 “Japanese Public Cries Foul Over Secrets Protection Bill,” WSJ.com
30 Japan's Supreme Court has a very poor record as a defender of individual rights. See, e.g., Shigenori Matsui, “Why Is the Japanese Supreme Court So Conservative?” 88 Wash. L. Rev. 1375 (2011), and Lawrence Repeta, “Restricting Fundamental Rights in Japan - the Role of the Supreme Court,” in Jeff Kingston (ed.) Critical Issues in Contemporary Japan (Routledge Curzon, 2013).
31 Lawyer Group Charges Abe with Constitutional Ignorance (English translation by the Japan Times.)
32 See generally Lawrence Repeta, “Japan's Democracy at Risk – The LDP's Ten Most Dangerous Proposals for Constitutional Change,” The Asia-Pacific Journal, Vol. 11, Issue 28, No. 3, July 15, 2013.
33 Tajima, supra note 23.