[March 17, 2006]

LEAD: High court OKs reporter's refusal to reveal news source+

(Japan Economic Newswire Via Thomson Dialog NewsEdge)TOKYO, March 17_(Kyodo) _ (EDS: UPDATING WITH ADDITIONAL INFO)

The Tokyo High Court on Friday accepted a reporter's refusal to reveal a news source, saying news-gathering activities are a premise for the freedom of press that serves the public's right to know, which is an indispensable component of a democratic society.

Presiding Judge Yomatsu Hinagata said, "Refusal to reveal a news source can be allowed unless there are particular circumstances" where if the reporter refuses to reveal the source, social and public benefits might be damaged to an equal or larger degree.

"It is difficult to say that the reporter's refusal would inflict equal or larger damage on public interests" in this case, the high court said. "It is not the news source that is being protected by the refusal, but the news organizations whose news-gathering activities would be seriously affected by a revelation," it said.

The decision also said that a reporter's refusal to disclose a source represents a "professional secret" accepted under the Code of Civil Procedure.

In handing down its decision, the three-judge high court panel rejected an appeal by a U.S. health food maker against an October 2005 ruling by the Niigata District Court that justified the refusal by a reporter for Japan Broadcasting Corp., known as NHK.

In a statement, NHK welcomed the decision which it said recognized the mass media's right to conduct news-gathering activities which is vital to guarantee the public's right to know.

The court battle involves the taxation of the U.S. firm's Japanese subsidiary in 1997 in connection with a suit filed in the United States.

NHK reported in October 1997 that the Japanese subsidiary had had an undeclared income totaling 7.7 billion yen and had remitted it to an affiliate of the parent firm in the United States, according to the high court decision.

The report also said Japan's taxation authorities and the U.S. Internal Revenue Service had imposed a back tax on the health food maker.

The health food maker filed a damages suit in the United States, arguing that tax information it supplied to the U.S. government was conveyed to Japan's taxation authorities, then leaked to Japan's mass media, which resulted in a series of defamatory media reports.

Under a bilateral legal cooperation agreement, U.S. judicial authorities commissioned Japanese courts to question as witnesses reporters from nine Japanese media organizations. Kyodo News is among the nine.

The NHK reporter, who was questioned at the Niigata District Court, refused to reveal the news source.

The food maker argued that there is no need to protect the news source, who is believed to have been a civil servant and disclosed information in violation of the confidentiality agreement of government employees.

But the high court followed a Supreme Court precedent that a breach of confidentiality may not necessarily be termed illegal as a violation of the National Civil Service Law if news gathering is done for the sole purpose of reporting and its methods are deemed appropriate.

Friday's high court decision is in sharp contrast with a ruling Tuesday by the Tokyo District Court that described a Yomiuri Shimbun reporter's refusal to identify a news source as unjustifiable. The battle at the district court also involves the taxation of the U.S. firm's Japanese subsidiary.

The Yomiuri Shimbun reporter refused to say whether the source was a Japanese government official.

Judge Ken Fujishita said if the reporter had obtained information from a civil servant, the news source may have to be disclosed. He said if the source was an official of Japan's National Tax Agency, leaking information to the reporter would mean a violation of relevant laws.

"Allowing a refusal to disclose a news source is equivalent to (the reporter) being indirectly involved in covering up a criminal act, and that is totally unacceptable," Fujishita said.

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