映画『BLACK BOX DIARIES』で今一番争点にすべきポイントは何か

Original English

As a documentary filmmaker, I feel it is important for me to speak out on the current situation regarding Shiori Ito’s use of unauthorized footage. To be honest, I have hesitated when asked to write about the subject because I did not feel like I knew enough of the details to make a clear judgement. As of now, I feel like there is enough information out there that I can make an opinion on this issue.

After the release of my film “Shusenjo,” five interviewees sued me, alleging that I had obtained their consent under false pretenses. I won the lawsuit in both the district and high courts, and ultimately, the Supreme Court dismissed the final appeal, solidifying my victory.

Although Ms. Ito’s case differs from mine in that it involves a lack of consent, whereas I obtained written consent before the interviews, I believe she still has a strong argument to justify her use of the footage.

Duty of Loyalty

Firstly, I do not think that the accusations should have been made public in the way they were. In Japan and the US, a lawyer has a duty of loyalty to their client that extends even after the representation of the client ends. This means that a lawyer has a duty to not act against the interests of a former client in matters related to prior representation. Therefore, it is possible that Lawyers Yoko Nishihiro and Chinami Kajo may have breached this duty of loyalty to their former client, Ms. Ito.

According to Ms. Ito, both she and Ms. Nishihiro signed a pledge to the hotel promising that the footage would be used solely for the lawsuit. I can therefore understand why Ms. Nishihiro might feel that she could be held liable and subject to litigation if the footage is shown in Japan. As a result, she may have felt the need to demonstrate that she did everything in her power to prevent the screening of the film in order to clear herself of any responsibility. However, even in this situation, I believe that publicly criticizing a former client may be a step too far. If the hotel were to file a lawsuit against Ms. Ito and Ms. Nishihiro, it would be easy for Ms. Nishihiro to prove that she made multiple attempts privately to dissuade Ms. Ito from using the footage, which would clear her of any wrongdoing.

An Alternative Interpretation

It is difficult to determine exactly why Ms. Ito’s former lawyers chose to risk breaching their duty of loyalty. Based on their statements during their press conference, they felt compelled to speak out because they believed Ms. Ito was violating human/privacy rights. They also argued that the usage of the controversial footage could discourage hotels or businesses from providing security footage to victims in the future and make whistleblowers or witnesses, such as the police officer and taxi driver, less willing to come forward.

Regarding the accusations of human rights violations, I certainly do not condone the violation of anyone’s human/privacy rights. In fact, if I were to suggest any edits to Ms. Ito, they would include blurring the taxi driver’s face and altering his voice, as well as altering the police officer’s voice if it remains recognizable to those who may know him. However, there are instances where the public interest in a film outweighs an individual’s privacy rights. I will elaborate on this later, but first, let us consider the fundamental purpose of human rights and privacy rights: they were created to protect individuals with little to no power from powerful entities such as governments or corporations. In this case, a hotel is not a human being and therefore does not have human rights, while the police officer is a public servant who had already been identified within the police force before the film was released. That leaves the taxi driver, who I believe has a legitimate reason to complain about his privacy rights being violated. However, I doubt (though I could be wrong) that he would be upset enough to file a complaint, as he was helping Ms. Ito in the footage and his reputation would not be damaged by it.

As for Ms. Ito’s former lawyers’ argument that her use of the unauthorized footage could make it more difficult for future victims to obtain security camera footage from hotels or businesses, I have doubts about this claim. Hypothetically, if another crime happened to Ms. Ito at the same hotel, I could understand the hotel hesitating to provide the footage; but would an entirely unrelated hotel withhold evidence from a completely different victim – who most likely would not be a documentary filmmaker – simply because Ms. Ito used unauthorized security camera footage in her film? It is possible, but I highly doubt that this would happen. Moreover, it is reckless of Ms. Ito’s former lawyers to make Ms. Ito responsible for hotels refusing to give up footage to a future rape victim. This kind of rhetoric is severely harmful to a rape victim survivor like Ms. Ito, who would never want to make it more difficult for victims to obtain evidence. Instead of blaming Ms. Ito, Ms. Ito’s former lawyers should be calling for hotels and businesses to make it easier to obtain security camera footage of a crime, as refusing to do so would be obstruction of justice.

Likewise, I think that whistleblowers or witnesses make decisions based on their individual circumstances and the specific context of the case in which they are involved. The risk of being outed for a witness or whistleblower is always there, and I do not think Ms. Ito’s film will negatively influence a person in any significant way when deciding to help a victim. On the contrary, one could argue that seeing the kind and courageous acts of the hotel, police officer and taxi driver, might lead to the public and the media to praise them for helping Ms. Ito, and it could encourage more people to come forward as whistleblowers or witnesses.

Public Interest vs Privacy Rights

As an American, I do not like to compare the US and Japan because people might hear it as me saying that the US is better than Japan in some way. I definitely do not think either is better or worse than the other. That said, the attorney representing Ms. Ito’s former lawyers, Katsuhiko Tsukuda, used an American film as an example to support his argument in the Shueisha article, so I feel it is fair for me to respond with a US Japan comparison of my own. Mr. Tsukuda argued that the American film “She Said” showed how American journalists never reveal the names of victims and make a great effort to seek consent from individuals involved, and that the film adaptation of this story shows that these practices are a standard in America. To counter this, I would like to point out that Ms. Ito never revealed the names of any rape victims in her film, and from what I have heard from Ms. Ito, she did do her best to gain consent for the footage in question by calling the taxi driver over ten times over the years, and trying to reach out to the police officer but finding out his phone number had been changed.

Much like many American films there is an element of fantasy that people who aren’t familiar with United States may take as reality. Of course, I know that American journalists typically seek consent from individuals, but sometimes it just is not possible. Nevertheless, they publish the story any way in the name of fair use and public interest. Documentary filmmakers and news organizations in the US regularly defend their use of unauthorized footage in the name of fair use and public interest. These two concepts are fundamental pillars of freedom of expression in the United States that ensure the media can criticize and expose issues that would otherwise be hidden from public.

Of course it is not the case that courts in the US always rule in favor of public interest over an individual’s privacy rights. The filmmaker or journalist would have to prove that the public’s interest of the footage outweighs the harm caused to the individual by releasing the footage. In Ms. Ito’s case, I believe there is significant public interest in the footage of the police officer, as it is reveals the great challenges that rape victims face to prove their case in Japan. It also illustrates how powerful public servants may try to protect their friends from prosecution, which could influence how people vote in the future. The footage of the hotel in conjunction with the taxi driver’s footage are in the public interest because it shows the kind of evidence that rape victims may need to obtain in order to prove their case both in court and to the public. Moreover, this may seem counterintuitive, but the refusal of permission, as in the case of the hotel, can actually strengthen a documentary filmmaker’s fair use argument that the footage is in the public interest in the US, as the refusal of permission can be seen as an attempt to suppress important information from the public.

This brings me to the comments made by Mr. Tsukuda in the Shueisha article, where he responded to Ms. Ito’s current lawyers. They argued that the hotel footage could be justified as serving the public interest by providing ‘relief for sexual violence victims’, which, I believe, meant that sexual violence victims who see the footage may find relief for various reasons. One possibility is that seeing Ms. Ito being dragged into a hotel may help other victims finally label their own experience as sexual assault, rather than merely viewing them as unfortunate situation they got into while intoxicated. (A survey in 2020 by a sexual assault survivors’ organization in Japan found that 52 percent of victims were not able to recognize they had been sexually assault immediately after it happened, and it took an average of seven years to acknowledge the abuse.) Mr. Tsukuda responded to Ms Ito’s lawyers comments by saying that public interest had been achieved because Ms. Ito had been acknowledged to be a victim by the court. I assume Mr. Tsukuda interpreted Ms Ito’s lawyers’ comment to mean that the hotel footage, which proves Ms. Ito was a victim, offers relief to sexual violence victims, and that this constitutes public interest. Although it could possibly bring some victims relief for that reason, I do not think that is the only reason. Mr. Tsukuda saying that public interest has been achieved by Ms. Ito winning her lawsuit, and therefore, there is no reason to show the hotel footage to the public in her film, makes me think that he does not understand the concept of public interest.

As stated earlier, the only individual who I believe has a privacy rights case is the taxi driver, as the hotel is not a human being and the police officer is a public servant, who was already outed as a whistleblower before the film was even released. If we weigh the strong public interest of the film against the potential harm done to this taxi driver, I would assume that an American court would rule in favor of Ms. Ito. The reason being that the taxi driver is not portrayed as a villain or in any negative light, but actually a quite sincere person who was conflicted at the time, as anyone would be in that situation; therefore, the harm done to him would be minimal or almost zero. Of course I could be wrong in my assumption – the taxi driver could have experienced serious mental distress or could have had his job threatened. But I highly doubt that because he could easily tell his employer that he did not know he was being filmed. In Japan, privacy rights are highly valued, so it is difficult to predict how the courts would rule in Japan, but, regardless of how a court would rule, I think it is time to have a public discussion about privacy rights in Japan and how it can lead to censorship and hinder important information from being revealed to the public.

Speaking of harm, Ms. Ito’s former lawyers say that they are trying to prevent possible harm to the police officer and the taxi driver, but have they stopped to think about the psychological and reputational harm they are causing Ms. Ito, a former client and sexual assault survivor. Ms. Ito faced an immense amount of criticism and threats during her lawsuit with Noriyuki Yamaguchi, which made her feel unsafe and even contemplate suicide. Those attacks were mostly from conservatives and right-wingers, but now, liberals and former friends and supporters are attacking Ms. Ito, which, I can say from my own experience, can cause more stress and sadness because it is more unexpected. Seeing someone smiling and strutting on film festival red carpets can make us forget that a person can seem happy and healthy in front of cameras, but be struggling with severe depression and anxiety in private. I’m not saying Ms. Ito is exempt from criticism, but I think her former lawyers should have thought a little more about the harm they could cause their former client, Ms. Ito, before publicly condemning her.

Earlier I explained why I think the individual footage in question was important for the public interest, but I also believe we should see the film as a whole with those questionable pieces of footage as part of the whole. In this sense, I believe that the film is highly in the public’s interest because it actually has the power to prevent rape and other forms of sexual assault in the future in Japan through building awareness on the issue. The film shows people not only in Japan but worldwide, what an intoxicated person, who is unable to consent to sex, looks like and how rapists are often not strangers, but acquaintances, colleagues, or even friends. The film also is in the public interest because it shows people what victims must endure and face when attempting to gain justice in japan, which will hopefully lead to a societal shift in understanding and eventually policy change that makes it less painful for victims to gain justice.

Censorship, Paternalism and Control

I believe that Ms. Ito’s former lawyers and the people who support their position have good intentions in trying to protect privacy rights of individuals, but the side effect to their actions is that they are essentially preventing the film from being shown by creating an environment where it is nearly impossible for the distributor and theaters to screen the film. For them to take such aggressive action to speak out against the film, unless it is edited to their satisfaction, feels authoritarian and paternalistic. I say paternalistic because the police officer and the taxi driver are adults and can decide for themselves if they want to speak out against the film. They did not ask Ms. Ito’s former lawyers to represent them or speak out for them. In fact, Ms. Ito’s former lawyers, have a duty of loyalty to her, as mentioned earlier, that continues indefinitely after their representation ends. Also, the police officer and driver are not part of a marginalized group that would have no voice to speak out against Ms. Ito. I am certain that journalists would jump at the chance to write a story if they complained publicly. It also seems paternalistic to Ms. Ito, as if the former lawyers are her parents scolding her publicly for breaking the rules, and if she does not do as they say, she should not screen her film. Ms. Ito, as an adult and sexual assault survivor, took a risk, as many artists do, to make art that expresses their life and experience, and I understand that there may be people who feel wronged by the film, but they can make their own decision to speak out or take legal action. And, the public and media can discuss and debate the public value and ethics after watching the film, but first the film needs to be screened in Japan.