The Problem of Makiko Tanaka�fs Eldest Daughter

     A report on Makiko Tanaka�fs eldest daughter appeared in Shukan-Bunshun

on March 25, 2004. The contents of the report were about the problem of the eldest

daughter�fs divorce. Although it may have seemed like a vulgar scandalous report,

the above weekly dealt with the topic seriously. As is usual with the mass media,

there was a problem between freedom of expression and invasion of privacy. In spite

of the complicated circumstances behind the report, the Tokyo District Court decided

to accept a complaint from the eldest daughter and stop the publishing of the above

weekly beforehand in order to prevent the gossip from spreading. As a result, 30,000

copies of the weekly were prohibited from selling although 740,000 copies that had

already been sold were neglected. Thus the decision of the Tokyo District Court gave

rise to the problem of privacy versus freedom of expression.

      The Tokyo District Court attached more importance to Makiko�fs eldest daughter�fs

privacy claims than claims for freedom of expression. According to the Tokyo

District Court, the privacy of Makiko�fs eldest daughter should be protected,

for she is a private individual, not a public figure, even if she is the eldest daughter

of Makiko Tanaka, a former Foreign Minister whose father was the famous ex-Prime

Minister Kakuei Tanaka. Of course, it is needless to say that a private individual�fs

privacy should be protected as the Tokyo District Court said; however, conditions

are quite different in the case of Makiko�fs eldest daughter. Shukan-Bunshun

commented on the problem of Makiko Tanaka�fs eldest daughter on its homepage�@(http://www.bunshun.co.jp/mag/weekly325/kenshou.htm),

in an article titled �gWhy did We Publish the Journal Report on Tanaka Makiko�fs

Eldest Daughter? (Tanaka Makiko Chojo Kiji: Shoshi wa Naze Hojitaka?)�h According

to the homepage, Makiko�fs eldest daughter is not a private individual but a semi-public

person who belongs to �ga gray zone,�h because there is the high possibility that she will

be a successor to Makiko Tanaka, a member of the House of Representatives on active

service. The homepage referred to the fact that both Makiko Tanaka and Naoki Tanaka,

Makiko�fs husband, became members of the Diet later although Makiko did not intend to

be an assemblyman and Makiko�fs father Kakuei Tanaka said that he would not make

his son-in-law a member of the assembly. The homepage of Shukan-Bunshun judged

from these circumstances that Makiko�fs eldest daughter belongs to �ga gray zone.�h

Makiko�fs eldest daughter is not purely a private figure. In fact, she is a person who

belongs to a gray zone that is near �gblack�h without limit. Hence, it follows that freedom

of expression should take precedent over an individual�fs privacy in the case of Makiko

Tanaka�fs eldest daughter.

    Indeed, the act in which Tokyo District Court ordered an injunction against selling

Shukan-Bunshun in advance was tyrannical. As one of its reasons, a famous Japanese

critic Takashi Tachibana referred to a report in Shukan-Asahi on April 2. It said that

one of the judges, who belonged to something like a society for the study of the anti-mass

media in the Tokyo District Court, was the one responsible for making the prompt

decision to stop selling Shukan-Bunshun for March 25 (cf., The Shukan-Bunshun for

April 8. p. 34). Few mass media acknowledged this assertion in Shukan-Bunshun.

According to Takashi Tachibana, there are acceptable and unacceptable forms of speech

(or �ggood�h and �gbad speech�h to translate his words directly), so some TV commentators

argued that bad speech�fs freedom of expression should naturally be limited. As their

opinion was that Shukan-Bunshun�fs report on Makiko�fs eldest daughter belonged to

the bad speech, many of them stated that the report on the divorce of Makiko Tanaka�fs

eldest daughter had nothing to do with freedom of expression guaranteed by the

Constitution of Japan. Nevertheless, on account of Shukan-Bunshun�fs appeal, a correct

decision was made by the Tokyo High Court on Mach 31, which was to cancel the decision

of the Tokyo District Court. The Tokyo High Court stated that a provisional injunction to

stop publishing was going too far although privacy of Makiko�fs eldest daughter was

indeed invaded. The editorial of the Asahi (April 1) clearly welcomed the decision of the

Tokyo High Court. On the other hand, reactions of other mass media and critics were not

as clear as the Asahi, although the said newspaper admitted the invasion of privacy. At

any rate, it was advantageous that a serious situation that privacy of a semi-public

figure surpasses freedom of expression was avoided.

     Two points should be made. The first one is that the name of a judge who made

prejudiced decision of provisional injunction should be made public. The responsibility of

the oppressive judge should be pursued. The second point is that the Tokyo High Court

stated that Shukan-Bunshun�fs assertion that Makiko�fs eldest daughter might become

a successor of the Tanakas was simply a guess, but the judges of the court should recognize

the political reality of the Tanakas much more. Their legal judgments should not be

limited to simple legal interpretations. As Shukan-Bunsun reported, not only Makiko�fs

eldest daughter but also her second daughter clearly seems to be to succeed Makiko

Tanaka. The homepage of Shukan-Bunshun, said that they have already begun learning

to be �gemperors�h by traveling abroad with their mother and helping their mother�fs election

campaign. If the judges of the Tokyo High Court had examined these facts more closely,

they would have recognized that Makiko�fs eldest daughter has never been an absolute

private individual.