Protecting Youth and Regulating Speech

[Aaron Gerow]

>Perhaps some of you can enlighten me on this one: just where do the 
>Japanese censorship laws begin and end?

As someone who has studied the subject but is still trying to figure it 
out, Japanese censorship regulations can seem arbitrary, inconsistent, 
and illogical (though so can those of other countries).  But there is a 
structure to it.

Basically, the first thing to know is that censorship is strictly 
prohibited by Article 21 of the Constitution.  However, as with most 
countries that protect free speech, there are exceptions for obscenity.  
Distribution of obscene materials is prohibited by Article 175 of the 
Criminal Code.  The definition of obscenity, however, has always been the 
problem.  Frankly, there is no law defining it and the reigning 
precendent in court law is still the 1957 decision banning the 
publication of the translation of Lady Chatterly's Lover.  Basically, it 
gives a lot of leeway to the police and prosecutors to define what they 
think is obscene.  (See my article on the In the Realm of the Senses case 
in the January 2000 Yuriika).  Historically, the police are much more 
concerned with "public" obscenity, which is why they don't go after small 
experimental films which sometimes have plenty of genitals and sex.  One 
can also see differences in attitudes towards different media: 
literature, for instance, can get away with a lot more than visual media 
like film or photography, and drawn manga more than "realistic" 
photography.  The police, since they cannot check everything published, 
are also notorious for using "example" cases--usually prominent figures 
or publications--to reassert their authority and publicize their 
definitions of obscenity.  They thus rely a lot on industry 
self-censorship (prompted by these occasional example cases), which does 
result in a lot of things getting through.

The problem with film is that not only the police, but also Customs and 
Eirin regulate it, and each can have different standards.  Customs can 
block the importation of obscene materials under Article 21 of the 
Customs and Tariffs Act, but in recent years it has in fact been the most 
liberal.  Eirin has no governmental authority, but is basically a 
self-regulatory agency funded by the fees it charges for inspection (thus 
making it less dependent upon the industry).  Yet some court cases in 
which Eirin was involved (like the Nikkatsu Roman Poruno case) 
effectively resulted in the court declaring that Eirin's decisions have 
some public authority--as if it is a substitute for government 
regulation.  Eirin's definitions of what's bad have changed over the 
years, for instance adding "in principle" before its code banning pubic 
hair in the early 90s.  It has usually been stuck between the liberal 
Customs and the strict police, the latter which has at least twice 
specifically targeted Eirin regulators for prosecution.  Beyond the 
police regulation, based on criminal law, I should also mention that 
local governments have issued bylaws on their own trying to regulate 
harmful elements relating to film.

Historically, censorship in Japan after the war has more strongly 
restricted sex than violence.  In fact, I know of no major case, either 
in law or with regard to Eirin, that caused a furor simply because the 
object was too violent. Battle Royale may be the first (though correct me 
if I'm wrong). Recent concern over youth violence, however, has shifted 
attention a bit, evinced by changes in Eirin's ratings system.

It is true that one sees a lot more sex and violence in materials kids 
can get a hold of in Japan than in many other countries.  Perhaps this 
reflects a laissez-faire attitude towards these matters, but do remember 
there have been several historical moments with regard to film or manga 
when public calls for more censorship did result in more industry 
self-regulation.

The vending machine thing was always curious, but in many localities, it 
is a thing of the past.  Many localities have already banned those 
vending machines for liquor.  Yes, it was a glaring oversight, possibly 
having to do with the problems of regulating distribution and the lack of 
clear regulations about selling to minors.  Japan is still working with a 
Criminal Law first written in 1921 which still has a lot that is out of 
date or needs revision.  The Child Pornography Law is one such case of a 
correction.

The LDP's recent moves in some way represent an effort to eliminate the 
inconsistencies between localities (with different bylaws) and in 
regulation of different media.  That's one reason why so many are worried 
about them.


Aaron Gerow
Associate Professor
International Student Center
Yokohama National University
79-1 Tokiwadai
Hodogaya-ku, Yokohama 240-8501
JAPAN
E-mail: gerow at ynu.ac.jp
Phone: 81-45-339-3170
Fax: 81-45-339-3171