THE RULES APPLYING TO THE PROCESSING OF DATA BY BUSINESS OPERATORS 2.1. The Japanese data protection framework

The legal system governing privacy and data protection in Japan has its roots in the Constitution promulgated in 1946.

Article 13 of the Constitution states:

"All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs."

Based on that Article, the Japanese Supreme Court has clarified the rights of individuals as regards the protection of personal information. In a decision of 1969, it recognised the right to privacy and data protection as a constitutional right (8). Notably, the Court held that "every individual has the liberty of protecting his/her own personal information from being disclosed to a third party or made public without good reason." Moreover, in a decision of 6 March 2008 ("Juki-Net") (9), the Supreme Court held that "citizens’ liberty in private life shall be protected against the exercise of public authority, and it can be construed that, as one of an individual's liberties in private life, every individual has the liberty of protecting his/her own personal information from being disclosed to a third party or being made public without good reason" (10).

On 30 May 2003, Japan enacted a series of laws in the area of data protection:

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The Act on the Protection of Personal Information (APPI);

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The Act on the Protection of Personal Information Held by Administrative Organs (APPIHAO);

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The Act on the Protection of Personal Information Held by Incorporated Administrative Agencies (APPI-IAA).

The two latter acts (amended in 2016) contain provisions applicable to the protection of personal information by public sector entities. Data processing falling within the scope of application of those acts is not the object of the adequacy finding contained in this Decision, which is limited to the protection of personal information by "Personal Information Handling Business Operators" (PIHBOs) within the meaning of the APPI.

The APPI has been reformed in recent years. The amended APPI was promulgated on 9 September 2015 and came into force on 30 May 2017. The amendment introduced a number of new safeguards, and also strengthened existing safeguards, thus bringing the Japanese data protection system closer to the European one. This includes, for instance, a set of enforceable individual rights or the establishment of an independent supervisory authority (PPC) entrusted with the oversight and enforcement of the APPI.

The APPI has been reformed in recent years. The amended APPI was promulgated on 9 September 2015 and came into force on 30 May 2017. The amendment introduced a number of new safeguards, and also strengthened existing safeguards, thus bringing the Japanese data protection system closer to the European one. This includes, for instance, a set of enforceable individual rights or the establishment of an independent supervisory authority (PPC) entrusted with the oversight and enforcement of the APPI.

In addition to the APPI, processing of personal information falling within the scope of this Decision is subject to implementing rules issued on the basis of the APPI. This includes an Amendment to the Cabinet Order to Enforce the Act on the Protection of Personal Information of 5 October 2016, and so-called Enforcement Rules for the Act on the Protection of Personal Information adopted by the PPC (11). Both sets of rules are legally binding and enforceable and entered into force at the same time as the amended APPI.

Moreover, on 28 October 2016 the Cabinet of Japan (consisting of the Prime Minister and the Ministers forming his government) issued a "Basic Policy" to "comprehensively and integrally promote measures concerning the protection of personal information". Pursuant to Article 7 of the APPI, the "Basic Policy" is issued in the form of a Cabinet Decision and includes policy orientations concerning the enforcement of the APPI, directed to both the central government and local governments.

Recently, by a Cabinet Decision adopted on 12 June 2018, the Japanese government amended the "Basic Policy". With a view to facilitating international data transfers, that Cabinet Decision delegates to the PPC, as the authority competent for administering and implementing the APPI, "the power to take the necessary action to bridge differences of the systems and operations between Japan and the concerned foreign country based on Article 6 of the Act in view of ensuring appropriate handling of personal information received from such country". The Cabinet Decision stipulates that this includes the power to establish enhanced protections through the adoption by the PPC of stricter rules supplementing and going beyond those laid down in the APPI and the Cabinet Order. Pursuant to that Decision, these stricter rules shall be binding and enforceable on Japanese business operators.

On the basis of Article 6 of the APPI and that Cabinet Decision, the PPC on 15 June 2018 adopted "Supplementary Rules under the Act on the Protection of Personal Information for the Handling of Personal Data Transferred from the EU based on an Adequacy Decision" (the "Supplementary Rules") with a view to enhance the protection of personal information transferred from the European Union to Japan based on the present adequacy decision. Those Supplementary Rules are legally binding on Japanese business operators and enforceable, both by the PPC and by courts, in the same way as the provisions of the APPI that the Rules supplement with stricter and/or more detailed rules (12). As Japanese business operators receiving and/or further processing personal data from the European Union will be under a legal obligation to comply with the Supplementary Rules, they will need to ensure (e.g. by technical ("tagging") or organisational means (storing in a dedicated database)) that they can identify such personal data throughout their "life cycle" (13). In the following sections, the content of each Supplementary Rule is analysed as part of the assessment of the articles of the APPI it complements.

Unlike before the 2015 amendment when this fell into the competence of various Japanese Ministries in specific sectors, the APPI empowers the PPC to adopt "Guidelines" "to ensure the proper and effective implementation of action to be taken by a business operator" under the data protection rules. Through its Guidelines, PPC provides an authoritative interpretation of those rules, in particular the APPI. According to the information received from the PPC, those Guidelines form an integral part of the legal framework, to be read together with the text of the APPI, the Cabinet Order, the PPC Rules and a set of Q&A (14) prepared by PPC. They are therefore "binding on business operators". Where the Guidelines state that a business operator "must" or "should not" act in a specified way, the PPC will consider that non-compliance with the relevant provisions amounts to a violation of the law (15).