Japanese Government Panel Targets Online Media

The International Herald Tribune reports that a Japanese Government Panel is proposing that the government begin regulating online news media in accord with its current regulations of traditional media. Although the Communication Ministry denies that this call for regulation will amount to censorship of the web, it has done little to allay fears that regulations will suffer from overbreadth or degrade the distinctive opportunities the Internet has provided for monitoring the government.

That the ministry intends to make ISP’s “answerable for breaches of vaguer “minimum regulations” to guard against “illegal and harmful content’” suggests that overbreadth would be a problem. As commercial entities, already subject government regulation and cognizant of the potential risk to their business operations from upsetting the governing party, ISP’s would probably have greater risk aversion than the average blogger or online news provider. But by making ISP’s liable, the regulations would pressure ISP’s to make their lower risk threshold the standard for the users of the web.

This is particularly problematic if the Herald’s assessment of Japan’s traditional media as exercising a high degree of self-censorship, coupled with a friendly disposition towards the ruling party, is accurate. If online news sources are filling in gap left open by self-censorship and providing the means for monitoring the government, as well as a forum for criticism, the Ministry’s intended regulation of ISP’s may undermine one of the key features of democratic governance: democratic accountability. Even assuming that information about the government’s activities were disclosed to reporters, if the regulations alter market incentives in a way that diminishes the availability of mediums for disseminating that information would deny the public of a meaningful way to subject the government to oversight. Indeed, this effect would closely track the outcome where the government actively withheld information about its activities.

Moreover, by targeting ISP’s rather than individual content providers, the regulations may diminish the pressure that news providers outside of Japan i.e. media entities in other countries, could put on Japan’s domestic news providers to cover controversial issues. For example, although traditional media in Japan is weary of subjecting the Royal Family to media scrutiny, coverage from news agencies abroad has revealed the absence of domestic coverage and pressured domestic media to rise to the level of coverage provided by foreign entities. If the regulations provide enough incentive for ISP’s to set one uniform, and probably overreaching standard, for news coverage, the benefit of this competition would be undercut.

To be sure, no regulation has been passed yet and there is still time for opposition to be mounted. And it is not clear that no regulation should be passed. If the government’s regulation of traditional media to deter libelous statements is legitimate, it is no less legitimate to address that concern in Internet media. The question is whether it is possible to come up regulatory standards that would do a better job of balancing free speech values with the government’s legitimate concerns.

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