1997.05.27

1993(O)1038

Minshu Vol. 51, No. 5 at 2009

Judgment concerning the relationship between a general evaluation in society of the nature of a particular newspaper, and the establishment of the crime of defamation by way of an article published in the said newspaper

Case to seek damages

Judgment of the Third Petty Bench, quashed and remanded

Tokyo High Court, Judgment of February 23, 1993

The editorial policy of a newspaper, composition of its main readers, and general evaluation in society of the nature of the newspaper based thereon do not affect the establishment of the crime of defamation by way of an article published in the said newspaper.

(Concerning 1 to 3) Article 709 and Article 710 of the Civil Code Article 709 of the Civil Code A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence. Article 710 of the Civil Code Persons liable for damages under the provisions of the preceding Article must also compensate for damages other than those to property, regardless of whether the body, liberty or reputation of others have been infringed, or property rights of othershave been infringed

The judgment of prior instance is quashed. This case is remanded to the Tokyo High Court.

Concerning Reason III for final appeal argued by the appeal counsel, HIRONAKA Junichiro I. In this case, the appellant of final appeal seeks damages from the appellee of final appeal, alleging that the article placed in a newspaper published by Appellee Company Y, which reports Appellant Z's comments, defamed the appellant. The outline of the facts determined by the court of second instance is as follows: 1. The article indicated in the attachment of the judgment of first instance (hereinafter referred to as the "Article") was placed in a evening paper published by the Appellee Company Y with the issue date of September 6, 1987. The Article is a seven-column article with headlines such as " X Will Give Desperate Testimony". 2. Prior to the time of publication of the Article, the appellant had been convicted by the court of first instance in the case charged for attempting to kill his wife, and at that time, the appellant was also subject to criminal investigation on the suspicion of accomplishing the killing of his wife after the said attempt. The outline of the Article is as follows: The Article reported that the investigation authorities of the United States of America decided to prosecute the appellant on the suspicion of accomplishment of homicide, and then it stated that Appellee Z, a mystery writer, "has been arguing that the offense was committed by a group of people with the aim of obtaining insurance money but X is not a key perpetrator, while saying that 'this is only my guess' ". The Article also stated that Appellee Z commented on the reason why the appellant would not uncover his accomplice, saying that " ' I suspect that, apart from the crime of shooting a gun at A, X was involved in another crime as a key perpetrator,' ' in the case charged for beating A (attempt of homicide), X was sentenced to imprisonment with work for six years (Tokyo District Court). X would be happy if his could finish his term in such a short period of six years, because I bet he was involved in a crime for which he would be imprisoned longer, or a crime in which he acted as a key perpetrator' ", and then it ended with the following statement, "glimpses of bad guys who want to muzzle X before he cries out 'I'll blow everything open' or those who fear his bombshell statement can be seen." 3. Since 1984, many media reports about the appellant were publicized, addressing the suspicion of the aforementioned crimes. II. According to the facts mentioned above, the court of second instance dismissed the appellant's claim, on the following grounds. 1. The Article, just from reading it once, can obviously be found to be only reporting what Appellee Z inferred not based on objective evidence but from an unrestrained standpoint of a mystery writer, and it was unlikely to be construed by general readers as meaning that the appellant had actually committed the acts as guessed by Appellee Z. 2. At the time when the Article was published, the appellant was evaluated in society on the premise that he was suspected of committing the aforementioned crimes of attempt of homicide and accomplishment of homicide, and in this respect, his evaluation in society had already been undermined significantly. 3. The newspaper in which the Article was placed, mainly targets commuting officer workers, using eye-catching headlines and mainly containing articles aimed for amusing readers. The Article is one of such articles in that it presents the guess made by a mystery writer at the suspicion about the appellant's commission of homicide in somewhat exaggerated manner so as to arose readers' interest by associating such guess with the news reports on the investigation of the homicide case, and it was actually read by general readers as a news article aimed for amusement about the appellant whose behavior had previously attracted pubic attention as a key person in the homicide case. III. However, the determination of the court of second instance mentioned in 3 above cannot be affirmed, on the following grounds. In the case of defamation of a person by a newspaper article, a tort takes place when the newspaper containing an article that undermines the person's evaluation in society is published and this causes the risk that the person targeted in the article is likely to be evaluated as indicated in the article. Therefore, we should say that the editorial policy of the newspaper, composition of its main readers, and general evaluation in society of the nature of the newspaper based thereon do not affect the liability for such tort. Whether or not the meanings or contents of a newspaper article undermine another person's reputation in society should be determined according to the ordinary care and reading manner of ordinary readers of the article (See 1954 (O) No. 634, judgment of the Second Petty Bench of the Supreme Court of July 20, 1956, Minshu Vol. 10, No. 8, 1059). Even where the editorial policy of the newspaper is to mainly publish articles aimed at amusing readers and the newspaper is actually read by those who favor such policy, as long as the newspaper has the nature of a news reporting medium, its readers do not recognize all articles published therein as being utterly unfounded but they would naturally consider that these articles contain some truth. Therefore, it cannot be denied that the publication of a newspaper article causes the risk of undermining the evaluation in society of the person targeted in the article. IV. The court of prior instance, although it found the Article to be likely to undermine the appellant's evaluation in society, denied the establishment of the crime of defamation by taking into consideration the editorial policy etc. of the newspaper in which the Article was published and other relevant factors. Such determination of the court of prior instance is illegal in that it has wrongly construed and applied the laws and regulations, and such illegality apparently affects the judgment of prior instance. The appellant's argument is well-grounded in that it alleges such illegality, and without needing to make determination on other points, the judgment of prior instance should inevitably be quashed. For further examination, it is appropriate to remand this case to the court of prior instance. Therefore, according to Article 407, para.1 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice SONOBE Itsuo Justice ONO Masao Justice CHIKUSA Hideo Justice OZAKI Yukinobu Justice YAMAGUCHI Shigeru