Ensuring the accuracy of reported information is a cornerstone of credible journalism. In the pursuit of this accuracy, audio recording interviews is a common and often invaluable practice for journalists worldwide. However, the legal landscape surrounding the recording of conversations, particularly when done without the explicit contemporaneous consent of all parties, varies significantly across jurisdictions. This article explores the legal position in Japan concerning a specific scenario: a journalist, whose identity and purpose are known to the interviewee (a "formal interview"), secretly makes an audio recording of the conversation solely for the purpose of ensuring the accuracy of their notes and subsequent reporting.

It is important to distinguish this situation from undercover recording, where a journalist might conceal their identity or the fact that an interview is taking place for journalistic purposes. The focus here is on overt interviews where the only undisclosed aspect is the act of audio recording itself.

The Legality of Making the Secret Recording in Formal Interviews

In Japan, the act of one party secretly recording a conversation they are participating in is not, in itself, automatically illegal under all circumstances. There is no general criminal prohibition against such "one-party consent" recording for conversations a person is part of. The primary legal considerations when a journalist secretly records a formal interview revolve around civil law, specifically whether such an act infringes upon the interviewee's right to privacy or other related "personality rights" (人格権 - jinkaku-ken).

The "Reasonable Expectation of Non-Recording" Standard

Japanese courts, when assessing the legality of secret recordings, tend to focus on whether the circumstances of the conversation gave the party being recorded an objectively reasonable expectation that the conversation would not be recorded. If such a reasonable expectation existed and was breached by the secret recording, the act of recording itself could be deemed an infringement of their personality rights, potentially leading to civil liability for damages.

Application to Formal Journalistic Interviews

When an individual knowingly agrees to be interviewed by a person they identify as a journalist, for the stated purpose of gathering information for a news report, article, or broadcast, their expectation regarding the subsequent publication or broadcast of the content of their statements is generally high. They are, by definition, speaking "on the record" unless otherwise specified and agreed.

In this context, a compelling argument can be made that the interviewee's reasonable expectation that the conversation itself is not being contemporaneously audio-recorded by the journalist (solely for the purpose of ensuring the accuracy of notes and quotes) is often low. The journalist's professional need for an accurate record is a widely recognized aspect of their work. The primary expectation of the interviewee usually centers on how the substance of their remarks will be used and portrayed, rather than on the specific method the journalist uses for note-taking.

Landmark Supreme Court Precedent: The "Reporter's Secret Recording Case"

This understanding is significantly supported by a landmark decision from the Supreme Court of Japan in a case often referred to as the "Reporter's Secret Recording Case" (also known as the "Phony Call Case" or Nise Denwa Jiken) (Supreme Court, judgment of November 20, 1981, Keishū Vol. 35, No. 8, p. 797).

The facts of this case involved a newspaper reporter who, in the course of investigating a politically sensitive incident involving an alleged "phony call" to the then-Prime Minister, conducted interviews with an assistant judge. The reporter secretly audio-recorded two of these interviews: one conducted in person at a hotel, and another conducted over the telephone. In both instances, the assistant judge was aware he was speaking to a reporter for a potential news story. The legality of these secret recordings became an issue in subsequent criminal proceedings against the assistant judge (for allegedly impersonating a public official during the phony call), as the defense challenged the admissibility of the tapes, arguing they were illegally obtained.

The Supreme Court ruled that the secret recordings made by the reporter were lawful. The Court emphasized that the recordings were made for the purpose of accurately preserving the content of the interviews for news reporting. Crucially, the Court reasoned that since the assistant judge knew he was speaking to a journalist for the purpose of news gathering and potential publication, he could not have had a dominant, objectively reasonable expectation that the conversation would not be recorded by the reporter as a means of ensuring an accurate account. For the telephone interview, the Court also suggested a possibility of implicit consent or, at least, a diminished expectation of non-recording in such a context.

This Supreme Court decision is pivotal. It establishes that, within the framework of a formal interview conducted by a known journalist for news-gathering purposes, secret audio recording by the journalist primarily to ensure accuracy is generally considered legally permissible in Japan. The interviewee's awareness of the journalistic context and the potential for publication of their statements largely negates a reasonable expectation that the conversation itself is shielded from such a method of note-taking.

Supporting Precedent: The "Fraud Victim's Secret Recording Case"

Further indicating that one-party consent recording is not per se illegal, the Supreme Court, in a different context, also upheld the legality of secret recordings. In the "Fraud Victim's Secret Recording Case" (Supreme Court, judgment of July 12, 2000, Keishū Vol. 54, No. 6, p. 513), an individual who suspected they were being defrauded secretly recorded conversations with the alleged fraudster. The Court found these recordings, made for the purpose of gathering evidence, to be lawful. While not a journalism case, it reinforces the general principle that a participant in a conversation may, under Japanese law, record it without the other party's consent in certain circumstances.

When a Reasonable Expectation of Non-Recording Might Arise

Despite the general permissibility in formal journalistic interviews, situations could arise where an interviewee does develop a reasonable expectation of non-recording. For instance, if a journalist explicitly states, "This part is off the record, and I am turning my recorder off," but then continues to record secretly, this assurance could create a reasonable expectation. A subsequent breach of this explicit assurance could potentially lead to a finding that the recording was an infringement of personality rights. The key is often the objective reasonableness of the expectation in the specific context.

Broadcasting the Secretly Recorded Audio: A Separate and More Complex Issue

It is critically important to distinguish between the legality of making a secret audio recording for accuracy during a formal interview and the legality of subsequently broadcasting that actual audio, especially if the interviewee's voice is identifiable. These are two distinct legal considerations.

Interviewee's Expectation Regarding Their Voice vs. Their Statements

Even if an interviewee fully expects the substance of their statements to be reported or quoted in print or by a narrator on television, they may not necessarily expect or consent to their actual, identifiable voice being broadcast to the public, particularly if they were unaware that an audio recording was being made specifically for potential broadcast use.

Potential for Infringement of Personality Rights and Privacy via Broadcast

The human voice is a distinct personal attribute, and its unauthorized public dissemination can, in certain contexts, be considered an infringement of personality rights or the right to privacy under Japanese law. Broadcasting an identifiable voice from a secretly made recording without the interviewee's specific consent for that broadcast can:

• Cause significant psychological distress or embarrassment to the interviewee.
• Damage the trust relationship between the media and sources.
• If the audio, combined with the content of the speech and visual context of the broadcast, reveals private information or leads to the identification of the speaker in a sensitive or unwanted manner, it could constitute a more concrete invasion of privacy.

The High Advisability of Obtaining Specific Consent for Broadcast

Given these risks, it is highly advisable, and generally considered best practice in Japan, to obtain separate, explicit consent from an interviewee before broadcasting any audio from an interview that was recorded without their contemporaneous knowledge and in which their voice is identifiable. This consent should ideally be specific to the broadcast use of their voice.

If such consent cannot be obtained, but there is a compelling reason to use a quote from the secretly recorded audio, broadcasters typically resort to having a narrator read the quote or displaying it as on-screen text. If using the actual audio is deemed absolutely essential and consent is absent, broadcasters might consider voice alteration techniques to render the speaker unidentifiable. However, this practice itself can raise ethical questions about transparency and potential distortion, and may not always be effective in fully anonymizing a distinctive voice or speaking style.

Broadcasting Ethics (BPO) Considerations

Japan's Broadcasting Ethics & Program Improvement Organization (BPO) frequently comments on journalistic practices. While many of its prominent decisions on surreptitious filming and recording have concerned undercover journalism—where the journalist deceives the interviewee about their identity or the purpose of the interaction—the ethical considerations are not absent in formal interview settings.

For secret recordings made during formal interviews solely for note-taking accuracy, the BPO's stance might be less severe than for deceptive undercover recordings, especially if ensuring accuracy is paramount for fair and responsible reporting and obtaining explicit consent for recording was, for some legitimate reason, impractical in the moment. The primary ethical concern would likely shift towards the use of that recording, particularly its broadcast.

The BPO generally champions transparency in journalistic processes. Broadcasting secretly recorded audio without a compelling justification and without the interviewee's consent for that broadcast would almost certainly attract negative scrutiny from the BPO from an ethical standpoint, regardless of the strict legality of having made the recording for internal accuracy purposes.

Practical Recommendations for Journalists and Broadcasters in Japan

Navigating this area requires a blend of legal awareness and ethical sensitivity:

1. Prioritize Consent for Recording: The most straightforward way to avoid legal and ethical issues is to seek explicit consent from the interviewee to record the conversation, clearly stating that it is for the purpose of ensuring accuracy. This fosters transparency and trust.
2. Adhere to Internal Guidelines: Broadcasting organizations and production companies in Japan often have detailed internal guidelines or codes of conduct regarding interview recording. These must be strictly followed.
3. Assess "Reasonable Expectation" Carefully: If circumstances necessitate considering secret recording in a formal interview (e.g., a highly contentious subject where the interviewee might be inhibited by a visible recorder, yet accuracy is paramount), a careful, objective assessment must be made as to whether the interviewee could genuinely harbor a reasonable expectation of non-recording.
4. Purpose Limitation is Key: If a secret recording is made, its use should be strictly limited to internal verification of notes and quotes. It should not be seen as an opportunity to later use the audio in a broadcast to "ambush" or misrepresent the interviewee without their specific consent for that distinct use.
5. Obtain Separate, Explicit Consent for Broadcast of Identifiable Audio: This cannot be overemphasized. If any segment of a secretly recorded interview featuring an identifiable voice is contemplated for broadcast, fresh and explicit consent for that broadcast usage must be obtained from the interviewee. If such consent is refused, the identifiable audio should not be broadcast.
6. Balance Accuracy with Trust: While achieving accuracy is a fundamental journalistic duty, maintaining the trust of both interview sources and the public is equally vital for the long-term credibility of any media organization. Secret recording, even if deemed legally permissible for note-taking, carries the inherent risk of damaging trust if discovered or if the information is handled insensitively.

Conclusion

In Japan, the act of a known journalist secretly audio-recording a formal interview primarily for the purpose of ensuring the accuracy of their reporting is generally considered legally permissible. This position is supported by Supreme Court precedent, which reasons that an interviewee speaking to a journalist for potential publication does not typically hold an objectively reasonable expectation that the conversation itself (as distinct from its informational content) will not be recorded as a means of note-taking.

However, this permissibility does not automatically extend to the broadcasting of such secretly recorded audio. The use of an interviewee's identifiable voice in a television broadcast without their specific consent carries substantial legal risks related to personality rights and privacy, in addition to significant ethical considerations.

The most prudent and ethically sound approach for broadcasters in Japan is to seek consent for audio recording whenever feasible. Critically, regardless of how the recording was made, separate and explicit consent should always be obtained before any audio that could identify an interviewee (who was unaware their voice was being recorded for broadcast purposes) is aired. This respects individual rights, upholds ethical standards, and mitigates legal exposure.