Censorship in Japan
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While Article 21 of the Japanese Constitution guarantees freedom of expression and prohibits formal censorship, effective censorship of pornographic content does exist and is justified by the Article 175 of the Criminal Code of Japan. Historically the law has been interpreted in different ways—recently it has been interpreted to mean that all pornography must be at least partly censored; however, there have been very few arrests based on this law.
As publishing became more popular in the Edo Period, the Tokugawa shogunate began to turn to censorship. During this period, the shogunate, or military government, had a constant policy to censor anything deemed as indecent by the government. Initial targets included Christianity, criticism of the shogunate, and information on the activities of the Tokugawa clan. With the Kansei Reforms, any material deemed to be disturbing the traditional way of life, as well as luxury publications, came under scrutiny. Under the Tempō Reforms, printing blocks of erotic literature, as well as the novels of Tamenaga Shunsui and Tanehiko Ryūtei were among those seized.
Their early bans focused on Christian books, military books (gunsho), mainly as a way to restrict regional Daimyo, feudal lord, from using Christianity as a political ideology and challenge the Bakufu's new rule while imposing their moral authority. As military and political instability settled, the shogunate turned their gaze on social unrest. They were noting an increase in civil disobedience and satirical criticism using literature and theater coming from ordinary people. An edict for publications guidelines were issued on Kyoho 7(1722)/11 with an outline of themes that were banned. In addition to literature, the Shogunate also placed limitations on kabuki theater actors. The shogunate prohibited women and children from appearing in plays; however, this law was often ignored by theater houses. These new laws resulted in the rise of male actors who would specialize in female roles called onnagata.
Meiji Period and the Pacific War
After the Meiji Restoration in 1868, which marked a major political shift in Japan, the government began heavy censorship of Western ideas, pornography and any political writings critical of the Emperor of Japan and government, wanting to control the spread of information. Censorship of materials increased from this point, often using ongoing wars to increase police penalties. In 1930, the death penalty was added to the list of punishments deemed acceptable for certain violations. This continued, eventually to the Information and Propaganda Department (情報部, Jōhōbu) being elevated to the Information Bureau (情報局, Jōhō Kyoku) in 1940, which consolidated the previously separate information departments from the Army, Navy and Foreign Ministry under the aegis of the Home Ministry. The new Bureau had complete control over all news, advertising and public events. The following year revision of the National Mobilization Law (国家総動員法, Kokka Sōdōin Hō) eliminated freedom of the press entirely, doing things such as forcing papers in each prefecture to either merge into one paper or cease publication, with all articles by the paper having to be screened by government censors before they could be published.
Occupation of Japan
After the surrender of Japan in 1945, the Supreme Commander of the Allied Powers abolished all forms of censorship and controls on freedom of speech, which was also integrated into Article 21 of the 1947 Constitution of Japan. However, press censorship remained a reality in the post-war era, especially in matters of pornography, and in political matters deemed subversive by the American government during the occupation of Japan.
According to Donald Keene:
Not only did Occupation censorship forbid criticism of the United States or other Allied nations, but the mention of censorship itself was forbidden. This means, as Donald Keene observes, that for some producers of texts "the Occupation censorship was even more exasperating than Japanese military censorship had been because it insisted that all traces of censorship be concealed. This meant that articles had to be rewritten in full, rather than merely submitting XXs for the offending phrases."
- —Dawn to the West
The sale and distribution of obscene materials in Japan is restricted under Article 175 of the Criminal Code (1907), which states the following:
A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale.
The article was amended in 2011 to include "recording media containing [obscene] electronic or magnetic records", as well as materials distributed by electronic means.
The definition of "obscenity", which is absent from the text of the code itself, has developed through a series of judicial decisions. In the 1957 "Chatterley Case", the Supreme Court of Japan upheld the convictions of translator Sei Itō and editor Kyujiro Koyama, who were accused of violating the law with their 1950 publication of D. H. Lawrence's erotic novel Lady Chatterley's Lover. In its opinion, the Court cited a three-part test for obscenity previously established by the Supreme Court of Judicature in 1928; under this test, a work is considered obscene if it "arouses and stimulates sexual desire, offends a common sense of modesty or shame, and violates proper concepts of sexual morality." Due to this legal interpretation, the majority of pornography produced in Japan undergoes self-censorship; the primary means are digital mosaics and/or censor bars placed over genitalia.
The first film after World War II to be prosecuted on obscenity charges was Black Snow, a 1965 pink film directed by Tetsuji Takechi and produced by Nikkatsu. The politically and sexually explicit film, which depicts the lives of prostitutes on the outskirts of a US military base in Tokyo, was ruled as "not obscene" by the Tokyo District Court in 1966. The lower court held that the defendants, Takechi and Nikkatsu distributor chief Satoru Murakami, were not culpable because the film had successfully passed Eirin, Japan's self-regulating movie regulator. The ruling was upheld in 1969 at the Tokyo High Court, which deemed that the film was obscene but acquitted the pair on the basis of the approval the film had received from Eirin. The rulings were followed in 1972 by a series of prosecutions against Nikkatsu's Roman Porno film series, which similarly ended in acquittals of Nikkatsu employees in 1978 and 1980 on the basis of Eirin approvals.
In January 2004, Yūji Suwa, Motonori Kishi, and Kōichi Takada were prosecuted for producing and distributing the hentai manga anthology Misshitsu, in the first manga-related obscenity trial in Japan. Police reports found the depictions of "genitalia and scenes of sexual intercourse" within the manga to have been "drawn in detail and realistically," and that the censor bars meant to obscure genitalia and sexual penetration were "less conservative" than usual. Suwa and Takada pled guilty and were fined ¥500,000 each (about US$4,700), with Kishi receiving a one-year suspended prison sentence. After appealing to the Tokyo High Court, Kishi's sentence was reduced to a 1.5 million yen fine (about US$13,750). He then appealed the case to the Supreme Court, arguing that Article 175 violated Article 21 of the Constitution of Japan and its protection of freedom of expression. In its 2007 decision, the Court upheld the guilty verdict, concluding that Misshitsu satisfied the three-part obscenity test and was therefore subject to restriction. After the convictions of Kishi and Suwa, a number of retail bookstores in Japan removed their adults-only section, a phenomenon attributed to the chilling effect of the outcome.
In July 2013, three people related to the Core Magazine, a Japanese publishing company focused on adult material, were arrested for selling "obscene images" with "insufficient censoring". They later pleaded guilty in December 2013.
Internet access in Japan is not restricted. Neither visible government restrictions on Internet access nor reports that the government checks on e-mail or Internet chat rooms without judicial oversight in the country exist. The constitution and law widely provides for the right of free speech and press, and the government respects these rights in practice. An independent press, an effective judiciary and a functioning democratic political system unite to protect these rights.
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- Constitution of Japan § Individual rights
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