The debate within the government and ruling party about amending the Juvenile Act has recently been reignited. One of the triggers for this was the case of three teenage boys arrested on suspicion of the murder of a younger boy in Kawasaki City in February of this year. The Juvenile Act defines those under the age of 20 as “juveniles” and sets out a range of measures for their reform or social rehabilitation. The main discussion within the ruling party, in view of the lowering of the voting age to 18, has been about whether the applicable age of the Juvenile Act should be brought down too.
Attention has also turned to Article 61 of the Juvenile Act after the publication by a weekly magazine of the real name of one of the arrested juveniles along with a photograph of his face. Article 61 forbids the reporting of any information that would enable the identification of juveniles who have committed crimes, such as their names, photographs, and so on. The main purpose of Article 61, it is commonly explained, is for the social rehabilitation of juveniles. Supposing that an offender repents while in a juvenile corrective institution and wants to make a fresh start in life upon his release, he may be prevented from doing so due to public prejudice (or labeling) if the facts of a crime have been released together with his real name, photograph, and so on. Some say, therefore, that we need to place a ban on the reporting of their real names taking into account the future of impressionable youths and the way their characters form.
Constitutional requirements (1) Benefit of social rehabilitation
From the perspective of the Constitution, which is my area of study, this “benefit of not having the real name of a perpetrator released with the facts of the crime for the sake of his or her social reintegration” is ultimately an important fundamental human right guaranteed under Article 13 (respect for individuals and the right to the pursuit of happiness) of the Constitution. Japan’s Supreme Court also regarded this benefit as a “fundamental human right” in a judgment in 1994, albeit not in a criminal case involving a juvenile. (The Federal Constitutional Court of Germany has also stated that the benefit of social rehabilitation is a constitutional benefit.)
Constitutional requirements (2) Freedom of expression and the right to know
On the other hand, Article 21 of the Constitution guarantees freedom of expression and freedom of press. Reporting of major criminal cases, in particular, is connected to the crucial and constitutionally guaranteed right of citizens to know, since such cases are significant events that all citizens ought to know about, that is, legitimate issues of concern for society in general. For all citizens to be able to discuss the cause of a crime, how to prevent it happening again, and so on, they need as accurate and detailed information as possible about the crime, including any background to the events. Also, publicly revealing the true identity of suspects is generally considered acceptable in the reporting of current events, at least in the case of adults, as a “basic element of crime news” that will ensure the accuracy of a story.
Can the two sides be reconciled?
So on the positive side, banning the reporting of real names upholds the right to social rehabilitation while on the negative side it blocks the freedom of press and people’s right to know. Both are important interests protected under the Constitution and we cannot say, in general terms, which one should take precedence. Article 61 of the Juvenile Act, however, seems at first glance to prohibit, without exception, the release of information that could identify a juvenile. In other words, it seems to say that giving a juvenile the benefit of social rehabilitation takes priority over people’s freedom of expression and right to know. From the perspective of the Constitution, there could be issues about whether there is sufficient reason for such prohibition or whether it is an excessive restriction of freedom of expression. (Is the Reporting of Real Names in Criminal Cases Involving Juveniles Unacceptable? [Shonen Jiken no Jitsumei Hodo wa Yurusarenai no ka], Shigenori Matsui (Nippon Hyoron Sha, 2000))
An “absolute” ban on reporting real names?
But there have also been actual court cases, particularly those of serious, heinous crimes, in which the reporting of real names was judged, out of respect for freedom of expression, not to have been unlawful. In this sense, Article 61 of the Juvenile Act has, in practice, been taken as not absolutely forbidding speculative reporting. Article 61 does not, however, necessarily imply any criteria for making such an exception.
Is the ban only on the reporting of real names?
Names and headshot photographs are certainly not an absolutely essential part of news reports on criminal cases involving juveniles, and pseudonyms or initials still enable meaningful reporting, so we can think that any damage to freedom of expression or the right to know caused by a ban on the reporting of real names in such cases is unlikely to be much of a problem. But the current Juvenile Act actually bans the publication of not only names and photographs but also any other information that could reveal the identity of juveniles, such as their age, occupation, address, and so on. In the recent Kawasaki case, the weekly magazine that published the names and photographs of the juvenile suspects has become the subject of debate, but most of other media organizations also published data on their age, occupation, address and so on. Formally, these other media bodies have also violated at least the article of the Juvenile Act. But if reporting is regulated to such a level, the question would arise whether juvenile criminal cases could ever really be reported on in a meaningful way. Even under the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the publication of information that could lead to the identification of a juvenile is only prohibited “in principle.” In a judgment by the Supreme Court of Japan in 2003, the benchmark of whether reporting is personally identifiable and therefore banned under Article 61 of the Juvenile Act is given as identification by “an unspecified number of ordinary people unacquainted with the juvenile.” It does not go so far as to call for caution to prevent identification by acquaintances of the juvenile. Of course whether we need juvenile criminal cases to be reported on in the first place depends on other factors as well, such as the severity of the crime. (Some assert the idea that real names should be allowed if a case is serious enough to be judged in open court.) But I believe we need to think a little more carefully about exactly what information is reported, how it is reported, and the effect it will have on the social rehabilitation of the juvenile and, in some cases, we may need to review the provisions of the law.
Legal responsibilities if a ban on reporting real names is violated
Violation of Article 61 of the Juvenile Act carries no penalty, and so it is not really clear under the law how news organizations that do violate it should be held legally liable or whether they should at least pay consolation money. Taking Article 61 as a legally non-binding provision, it can do little damage to freedom of expression but, on the other hand, could be deemed inadequate in safeguarding the social rehabilitation of juveniles.
In fact it is currently not fully clear whether Article 61 of the Juvenile Act was originally intended to express the constitutional requirement for the benefit of the above-mentioned social rehabilitation, or how the Article is connected to the right to privacy and honor, both also guaranteed under the Constitution. These points have also been dealt with in conflicting ways in different court cases.
Although I cannot dwell on it here, we also need to consider how to deal with the exposure of the real names and photographs of juveniles and their acquaintances on the Internet. Whether from a constitutional or legal perspective, there can never be any justification for acts of online “lynching” by written comments from the general public or reporting by the media.
If work gets underway to revise the Juvenile Act, it seems that some extremely clear guidelines are required on these points. From a constitutional perspective, at least, there is a need to reconcile these two key interests guaranteed by the Constitution, namely, the benefit of social rehabilitation and freedom of expression.
- Kenji Shibata
Assistant Professor, Faculty of Law, Chuo University
Area of Specialization: Public Law
- Professor Shibata was born in Oita Prefecture in 1976. He graduated from the Faculty of Law, Chuo University in 2000 and completed the master’s program at the Graduate School of Law, Chuo University in 2004 before gaining a PhD in Law from the same university in 2012.
He served as part-time lecturer at Komazawa Women’s University and Komazawa Women’s Junior College, part-time lecturer at Chuo Gakuin University, part-time lecturer at Wayo Women’s University, part-time lecturer at Toyo University, and part-time lecturer at Aomori Chuo Gakuin University before taking up his current post in April 2013.
His area of specialization is Public Law (Constitutional Law) and his main research theme is the comparative study of the Japanese Constitution and the constitutions of Germany and the US in regard to the relationship between nation and constitution (the separation of religion and state, public welfare, and national purpose) and how supreme courts review the government's law and actions against the constitution (constitutional review criteria and proportionality).