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国会図書館「児童ポルノ」閲覧制限(朝日2005/7/17)

土曜日の朝日新聞にこんな記事が載っていました。

「「児童ポルノ」閲覧制限 国会図書館 納本義務で所蔵「摘発対象」指摘受け」34面
asahi.com
http://www.asahi.com/national/update/0717/TKY200507160368.html

何でも、今年4月に朝日新聞から指摘を受けて調べたところ、2002年にすでに児童ポルノ法違反の判決が確定していた出版物を閲覧・コピーさせていたことがわかり、あわてて利用禁止措置をとったんだそうです。

朝日新聞、そんなこともしてるんですね(笑)。朝日新聞が児童ポルノ摘発機関となった記念すべき瞬間(?)
今年4月の朝日の紙面には載っていなかったような気がしたのですが。

それで、「ほかにも漏れている可能性があるとして、同図書館は有罪、あるいは起訴された事件の写真集などの情報を法務省に求めたが、『リストアップしていない』と断られた。逆に、児童ポルノにあたる構成要件は法で明示されていることから、『図書館で判断できるはず。もし児童ポルノを提供しているとわかれば、摘発対象にもなりうる』と、自主的な対応を迫られた」らしいです。

法務省もムチャいいますねぇ。児童ポルノにあたる構成要件って、「衣服の全部又は一部を着けない児童の姿態であって性欲を興奮させ、又は刺激するもの」っていう、とても主観的なものです。どんな姿態をみて「性欲を興奮」「刺激」するかって千差万別ではないかと思うんですが・・・まさか国会図書館が何らかの委員会を開いて「いやぁ、この写真は性欲を興奮させるねぇ」とかって判断しろと?まぁ一億歩譲ってそれでよしとして、その後裁判で「この写真は児童ポルノではない」って確定したら、まさに「検閲」したことにならないんですかね?

先の最高裁判決では、「公立図書館は、住民に対して思想,意見その他の種々の情報を含む図書館資料を提供してその教養を高めること等を目的とする公的な場」と述べられています。そして、「そこで閲覧に供された図書の著作者にとって,その思想,意見等を公衆に伝達する公的な場」なので、「不公正な取扱いによって廃棄することは,当該著作者が著作物によってその思想,意見等を公衆に伝達する利益を不当に損なうものといわなければならない」と言っています。

利用禁止にするということは、先の最高裁判決にいう「廃棄」と同じく、「当該著作者が著作物によってその思想、意見等を公衆に伝達する利益を不当に損なうもの」だと思われます。また、住民がその資料を受けられないことも意味します。ある写真集等をもって図書館が自主的に「児童ポルノだ」と判断して利用禁止にするということは、その写真家がその写真を公衆に伝達する利益を不当に損ね、住民もその写真の提供を受けることができないことになります。

この記事では「法務省刑事局の風紀担当は『有罪認定されないと判断できないという言い分はおかしい』と話しているらしいのですが、図書館とその他の情報産業との役割の差についてあまりにも無理解です。図書館は住民に情報を提供する場であるとともに、著作者にとっては自らの思想・意見の伝達の場ともなっています。情報産業の方々は、いわば自発的に情報を提供しているだけなので、自主的に判断して情報を提供しないことも許されるでしょう。しかし、図書館は前述のような役割を担っているので、自主的に判断して見せないということは、住民が情報を受け取る機会や著作者が情報を伝達する機会を失わせることになり、極めて問題です。

この記事によると、国会図書館は、「表現の自由との兼ね合いから、『検閲のようなことは難しい』としながらも、法の構成要件や判例を参考に該当しそうな写真集や雑誌を今年中にリストアップ。個別に全国各地で有罪認定か起訴されていないかを調べ、該当すれば内規に従って利用禁止、そうでないものについても、今後、違法性を問われるおそれがあれば何らかの制限を検討するという」とあります。該当しないものにも何らかの制限を検討するという書き方をしています。

私は、「児童ポルノに該当すると裁判で確定、あるいは係争中の資料」について、閲覧やコピーを禁止できるようにしているという、現在の国会図書館の内規の取扱いが妥当だと考えます。不用意な制限は何らいい結果を生まないと思います。

国会図書館の運用は他の図書館に波及しやすいので、このような国会図書館の運用を求める声が広がらないことを願っています。

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こんにちは。
次のTwitterまとめ末尾の註に、記事をリンクさせていただきました。もしご支障ございましたらお知らせください。削除いたします。

▼講演「記憶の伝承と図書館 私感」(大滝則忠 国立国会図書館長)実況まとめ:2013年11月3日 - Togetter http://togetter.com/li/585722

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