December 11, 2017

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UN Rapporteur David Kaye’s Forum Organized by Human Rights Now


UN Special Rapporteur David Kaye held a lecture organized by an NGO, Human Rights Now on June 2nd 2017. Kaye was visiting Japan to attend a panel discussion on Freedom of Press and Challenges that Journalism is Facing at Sophia University on the same day. This event was one of the events part of the Sophia University UN Weeks (from May 29th to June 9th). Prior to the panel discussion, he held a press conference at Sophia University.

Kaye visited Japan in April last year to do investigations on free speech issues and media independence; he will be submitting a report on it to the UN publicly on June 12th.

The lecture was held in a building near the Parliament and in addition to politically enlightened citizens, several members of Parliament participated as well. The chamber was overcrowded and there were people who were not able to enter the room, which depicts the high level of enthusiasm that the Japanese public had towards Kaye.

In the lecture, first he talked about the role of UN Rapporteurs and second, he talked about his analysis of the situation regarding Japanese free speech.

He mentioned that a rapporteur has three roles: 1. to communicate directly with governments around the world when he has a concern about their implementations of freedom of expression; 2. to conduct country visits; 3. to conduct thematic reports on particular areas of freedom of expressions if they are under some form of threat around the world.

With regards to the situation surrounding free speech in Japan, he first mentioned that there is a strong legal framework that guarantees freedom of speech in Japan, such as article 21 of the Japanese constitution, which guarantees overall freedom of expression. Within that framework, Japanese people enjoys a high degree of free speech as article 21 of the Japanese constitution guarantees overall freedom of expression.

He added that however, even in a democratic society that guarantees such a high degree of free speech, we must be vigilant to protect the framework for free speech. As he observed carefully, he found two issues with free speech in Japan. The first one is media independence. Japan has strong media outlets and journalists who engage in investigative journalism, but at the same time there are clear risks out there to the independence of media Japan.  His report also emphasizes that media independence in Japan can be improved significantly by creating an independent broadcast regulator.

This is because broadcasters in Japan fall under the jurisdiction of the Ministry of International Affairs and Communications, and it has comprehensive authority over granting and revoking licences to broadcasters.  Kaye stated that this in the future makes the broadcasters “susceptible to government interference” and that it should be lodged in an independent non-partisan regulator of the media that does not have the power to suspend licenses based on content alone.”

He also stated that the “kisha system” has created a general environment that hinders media independence. When Kaye visited Japan April of last year, he criticised Kisha Club, and though he did not say “kisha club” this time, he used the word, “kisha” only when he referred to “kisha club” last year, so one can assume that he was criticizing the kisha club at this time too.

During the Q and A, a member of the Upper House, Hideya Sugio asked Kaye what he thought about Minister Sanae Takaichi’s comment that she felt unfortunate when she had asked him to explain and have a grasp of the facts regarding the stance that Japan takes, but he was not able to understand it properly.

Perhaps in his attempt to have a confrontation with Minister Takaichi, Kaye did not make a comment in relation to Takaichi, but he talked about Japan in general.

However, he stated that Article 4 of the Broadcast Act “allows for suspension in the event of a lack of fairness.” And he used a phrase indicating that this provision hangs like The Sword of Damocles over media outlets, and he stated that this is not criticism against Prime Minister Abe or Minister Takaichi.

With regards to questions on how he thinks about the recent rape of a female journalist by a prominent journalist and if he could include his opinion about it in his report to the UN, he stated that he is not familiar with the incident enough to convey his opinion, so he does not have anything to say about it although he stated that it should be reported more widely if it serves the benefit of the public.

Youtube Video tititled 20170602 UPLAN 国連表現の自由特別報告者デビッド・ケイ氏を迎えて-対話と相互理解を求めて-

David Kaye:

Is this uh? Maybe needs…Here we go. I hope everybody can hear me. Arigatogozaimasu. Thank you very much for coming and participating in this forum. I do especially want to thank Kazuko Ito and Human Rights Now for organizing this session. I also want to emphasize that my goal here is to describe the system of Special Rapporteurs in the United Nations and to provide a little bit of context to the work that I do. I’ll say a few words about the work that I’ve done in Japan. But I really want to limit my comments in the main and take any questions that people may have in common that people may have so that it can be more of discussion. I can understand to a certain extent what your concerns are and what you want to learn from me.

Thank you. So let me start by talking a little bit about the human rights system in the United Nations. I’ll try to keep this very brief because I know that my …whatever I say is double because of interpretation. So, the human rights system at the UN is centered around the Human Rights Council. It’s a body that is elected by members of the United Nations General Assembly. And it focuses on human rights around the world and just as the Human Rights Council has a global focus, so too is my own mandate from the Human Rights Council global. I’m not a special rapporteur on Japan Freedom of Expression issues. I’m a special Rapporteur on Freedom of Opinion and Expression globally.

So I’m one of over 50 human rights special rapporteurs for the Human Rights Council. In other words I’m on many many mechanisms that monitor human rights around the world. And my focus by appointment of the Human Rights Council is on freedom of opinion and freedom of expression.

And as part of my role like other special rapporteurs, I basically do three kinds of things. So the first is that I communicate directly with governments around the world when I have a concern about its implementation of freedom of expression. The second thing is I conduct country visits like my country visit to Japan last April. A year ago April. Or my country visits also last year to the countries of Tajikistan in March and to Turkey in November. And then the third tool, let’s say in my tool kit is to conduct thematic reports so basically studies on particular areas of freedom of expression that are under some form of threat around the world.

Whether its thematic work or it’s interacting with governments, I tend to focus on the number of comments and themes and common threats and some of those include the kinds of issues that I’ve addressed in the context of Japan.

So those involved issues such as the protection of and promotion of independent media and independent journalists and it involves also protection of the rights that individuals who are members of vulnerable communities have. And it involves digital rights. So the kinds of freedom of expression that we think we enjoy and actually in Japan I think people do very much enjoy in terms of freedom of expression on the Internet.

Now if people are interested in the broader issues of expression, particularly protection of journalists, I think there are may still seats available at a conference later this afternoon at Sophia University which will be focusing on the protection of journalists and protection of independent media worldwide and the threats that were seen which are very much increasing around the world. This is an event co-sponsored by the committee to protect the journalists and Sophia University and for anybody who is interested in those issues and who wants to hear more about it, I encourage you to go to that public event this afternoon. I think it starts around five o’clock.

So now I’ll say a few words about my report on the situation of freedom of expression in Japan right now, but I also want to emphasize that I will be doing a more formal press conference at 3:30 at Sophia University. So for those who want to attend and have more direct questions and more detail on the report I encourage you to come to that because I really want this to be an opportunity not just for journalists, but for members of civil society beyond the journalists community to ask questions and to raise their concerns.

So what I want to say about the report that focuses on Japan are a number of things and I will start with this. The first is that the report which was based on a more than one week visit to Japan last April, so April of 2016 along with a series of discussions and continuing study of the situations over the past year. The report emphasizes at the beginning that there is a strong legal framework that guarantees freedom of expression in Japan. And those of you from Japan know that’s the Article 21 of the Japanese constitution.

And so within that framework Japan and Japanese people enjoy significant freedom of expression, I believe. Freedom of Expression on the Internet which is at very high standard. Freedom of Expression in the context of demonstrations, freedom of expression in civil society, freedom to criticise the government. This is a basis, a strong foundation really for freedom of expression in this country.

But as it’s true with any democratic society, we must be always be vigilant to protect that foundation, to protect that framework for freedom of expression. And in my report, again which is based on a foundation for freedom of expression, identifies areas that I think should raise concern for all people in Japan who believe in a democratic society and believe in institutions that make democracy that make civil society function well.

I’ll mention those two issues and then I’ll stop talking and we can take questions. The first issue is media independence. There is in Japan a number of very strong outlets and journalists who do investigative journalism. There is no question about that. And no journalists are being arrested for the content of their journalism. At the same time, there are clearly risks out there to the independence of the media. And my report emphasizes one particular area where I think the government can do significant improvement to strengthen the independence of the media and that is in the creation of independent broadcast regulator.

So here’s something that most people don’t remember or don’t know. That is that Japan at the earliest post war founding of the Japanese government actually had an independent regulator for the broadcast media but the first government, the first post occupation government in Japan abolished, for reasons of efficiency really, abolished that independent regulator and now regulation of the media is lodged with the Ministry of Internal Affairs and Communications and my view based on my understanding of the global standards for media regulation is that the media should not be regulated by the government directly which could then maybe not now but in the future perhaps be susceptible to government interference it should be lodged in an independent non-partisan regulator of the media that does not have the power to suspend licenses based on content alone.

So there are several factors that combined interfere with to undermine media independence, so one is the fact that regulation of the broadcast media lodged in the government. Second is that the independent media itself doesn’t enjoy any kind of organization of solidarity. So journalists have solidarity and loyalty at least in the mass media to their company rather than to other journalists. We also see significant amount of concern among journalists themselves and I talked to far too many journalists during my visit and the a year since. This to be dismissed far too many journalists who see pressure in their day to day work not to cover certain issues that might be sensitive. Not to cover the issues that might be overly critical of government so these things combined together with the Kisha system that is really a form of access journalism creates a general environment where media independence is very difficult to establish and is very important to fight for.

I actually think that I want to stop here. So that I can be responsive to questions that you might have because I could lecture for another hour. And that’s not really fair to the reasons that you are here. So why don’t we stop there. If there’s an issue. I could ask for. I don’t know how Ms. Ito wants to proceed I’m very, I don’t mean this as something particularly as a report that focuses on media protection and independence I don’t want to ignore the journalists. But I want to emphasize to the greatest extent possible ensuring that we have questions from civil society as well so that we have a fair sense. And also if you could keep your question very very brief and make sure that there are questions to ensure that we can get as many questions as possible.

I have three questions now. The first is about the journalist that you interviewed. Who did you talk to and how did you meet them? The third question is about what is the reason there is a lack or solidarity among journalist. Thank you.

So on the SDS act so I think probably most everybody in the room in the room is familiar with Specially Designated Secrets Act which was adopted a few years ago by the government and it creates a new system of classification of secrets, but it also creates a system of penalties for the disclosure of so-called specially designated secrets. And my predecessor Frank La Rue and I have consistently raised concerns about several aspects of the Specially Designated Secrets Act. One are very strong concerns that it would undermine the protection of whistleblowers and also undermine the protection that journalists have when they are reporting on sensitive issues. Sensitive issues such as the nuclear power industry, earthquake and tsunami preparedness, national security issues and change in national security environment so we have concerns about that we also raised concerns about oversight. In the last …maybe I will stop there for interpretation.

The reasons why we have these concerns about Specially Designated Secrets Act is that  we think it’s absolutely important and it’s in part of international human rights law in particular the right to freedom of expression that everybody has access to information that in a democratic society we have access to information that helps us to decide who we want to vote for what we believe about matters of public concern. How prepared we are for different eventualities in our political and natural lives so these are very important issues and I do think in my discussions with the government.  Mr. Cannatacci was alluding to. I think that the government over the past couple of years has come to understand our perspective and has really tried in some respects to address some of the issues in terms of guidelines to ensure better implementations of the act and to ensure that it doesn’t interfere with access to information. One of my main remaining concerns is that those guidelines are not in the law and that to the extent it can be more guidelines, more clarity, more certainty for journalists in particular. That should all be in the law rather than guidelines that could be avoided in some of eventuality in the future.

So with the respect to the question about the fact gathering really, so one of the most important things for us is as rapporteurs as with any human rights fact finder is to make sure that we talk to wide range of stakeholders and that we talk to people who can give us credible information about different issues. And we did that here. In the context of journalists we met with journalists across this political spectrum, I know that the media is organized in Japan in such a way that you know some are more on the left and some are more on the right. We made an effort to speak across the board including to NHK. We spoke with people in management. We spoke with individuals who interact with journalists, but it’s also want to one of the most fundamental principles of human rights reporting is that we don’t disclose our sources unless they consent to it. If any of the journalists we spoke with want to identify themselves, they can do so. But I am not going to do that because that’s not fair to them. That’s not how we do human rights reporting.   

Maybe you had a second question. Maybe we can take a couple of more questions, and we’ll come back to that. Arigatogozaimasu. Thank you very much for those questions. So let me first address their comments on the minister. Although I don’t want to specify her in particular. My understanding from the government, the present government, is that the Japanese government has always whichever the government in charge has always taken a view that the article 4 of the Broadcast Act which connected to another provision of the broadcast act allows for suspension in the event of the lack of fairness and so forth that every government has said that’s the power that they would enjoy, but they wouldn’t exercise it in a way to undermine freedom of expression. My view is great. So there is nothing in the past that shows that they would use that to undermine the broadcast media, but it hangs like if I can use the phrase like The Sword of Damocles over some media over broadcast media in the event that they have reporting that the government doesn’t like and if the government were not doing the regulating then the media wouldn’t have this kind of concerns. So this is not a question of this particular government. This is really not a criticism of Abe government or of Minister Takaichi. This is an assessment of the Broadcast Act which has been a part of Japanese law since about 1950 and it’s identification of a problem that I think now is a good moment for the government to solve before there is a concern. I have come from a country where we have concerns over freedom of expression and over the freedom of the media. I think every democratic government wants to protect itself from any future abuse. I’m not talking about the present abuse. I’m talking about future abuse. So that’s an issue that I really want to emphasize. It’s not a present criticism of this government necessarily although there are issues that we can talk about. But it’s a real concern that I have about the nature of Japanese law and the regulation of the broadcast media.    

So you also asked a question about what’s next and this will maybe carry over into your question. I have no power. I have no power. The only power that I have is that I enjoy a platform that’s provided by the Human Rights Council. It’s up to the people of Japan to decide whether my recommendations are nonsense or they merit some further consideration. Obviously my hope is that people of Japan don’t think that this is all nonsense, but they take it into an account. But these are merely recommendations.  Uh. They are merely recommendations based on my analysis of human rights law, my analysis of media regulations and freedom of expressions around the world and comparing other democratic systems. Basically the peer countries of Japan and if the Japanese people think they are some good ideas here. My hope is that they become part of public debate and that the government doesn’t take these recommendations as a hostile act, but as a very very friendly act to a democratic, a member of democratic community in the world. That’s all. That’s all it is, but once I made the report to the Human Rights Council which I will do publicly on June 12th. After that it’s in your hands, really, and in the hands of the government. But’s it’s really in the hands of the people on the side if these are worth pursuing.

So this leads to the other question about the conspiracy legislation. And I haven’t studied the legislation in any detail. I’m a lawyer and a law professor. Although I would like to talk about the things that I don’t know anything about. I want to be very careful about that here, but I do want to emphasize one point. That is and this ties to the other question what’s next. As special rapporteurs our aim is to provide analysis when we are talking about laws, legislation, to provide analysis of legislation where we have concerns to raise their concerns but it’s all about initiating a dialogue with government and sometimes that initiation of a dialogue might look like criticism. But it’s not always meant to be critical. Sometimes it’s meant simply to raise their concerns and get some answers about those issues.  For my part, I raise issues about legislations around the world all of the time and in that context as soon as I do an analysis of legislation it’s posted on the UN website. And that means that it’s available not just to the government but also to the parliamentarians, like you so that you can have a sense of my views. But again as with the issues around media independence our views can be completely rejective. That’s the prerogative of sovereign government. But the Human Rights Council doesn’t ask us to do this. We are independent on the UN. I don’t get paid by the UN. That’s something that my children don’t understand why I take the job. You are not get paid. But and it’s not a lesson that I want them to learn either. But we are independent of that and so when we do make recommendations they are not recommendations on behalf of the UN. But at the same time they are recommendations from people who have been appointed by the UN to do their best effort at analyzing law for consistency with human rights norms.  That’s all we are doing. In the case of Mr. Kanetachi’s work, I think that’s all he was doing as well and my hope is that it’s taken a spirit of analysis and not outright criticism.  

I’m not going to waid into the present controversies around specific journalists. I don’t know enough to respond to them. I mean the fact that this is public at least it suggests to me that there is some reporting that takes place. It should be reported more widely if it’s in the public’s interest. But I don’t know enough to say anything specific about any present controversies. Just to emphasize what I said at the beginning. My aim is to identify legal and structural problems and particular practices that might be strengthened that might be improved so that the freedom of expression more generally improve. I don’t have specific things to say about present controversies.

You can tweet them at me. Maybe over the next week. I will try to answer them. But I just don’t have. We just don’t have time. I’m going to Sophia University for an event over there. I also want to thank everybody for coming but I also want to I couldn’t take all of the questions that you might have. So that’s the first thing I might want to say.

The second point is that it’s not the general point that’s not just for the people in this room. I think many of the people. Many of you here already feel that there is something important about the Human Rights Council and the United Nations’ general message that I hope that you take to your own communities is that that is understood more broadly in Japan and among the public is that the UN really shares in many respects the values of Japanese law and Japanese society and one very good example of this is one of my colleagues who was addressing the human rights situation in North Korea and this government gave from what I understand this government gave a Special Rapporteur in human rights situation in North Korea a national award. Even this government understands and I think many of Japanese people understand that the United Nations and the Human Rights Council very much are moving in the same direction the same values as the people of Japan to the extent that message can be emphasized both with the government and with your communities with your friends. I think that helps people understand what it is that we are doing our special Rapporteurs which is working to ensure that human rights are enjoyed by all people around the world and that places democratic like Japan that democracy is strengthened and continually strengthened so that it’s capable of placing any potential threats that people might face in the future. So with that I want to thank you all for coming. I will leave it to interpretation and I wish you all the very best of luck in pursuing these issues in freedom of expressions and pursuing these issues that are concerned to you in Japan and around the world.



  • Earl H. Kinmonth

    David Kaye seems totally unaware that the broadcast law in Japan came in during the American occupation of Japan and that the provisions are similar to the 1949 “Fairness Doctrine” that existed until it was effectively rendered null and void by Ronald Reagan.

    The elimination of the Fairness Doctrine in the US led to a proliferation of right-wing “shock jocks” and overtly right-wing television news channels such as Fox News.

    If anything, the broadcast law prevents television and radio in Japan from going the way they have in the US – to a primarily right-wing political orientation.

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