Special categories of data
Specific safeguards should exist where "special categories" of data are being processed.
"Special care-required personal information" is defined in Article 2(3) of the APPI. That provision refers to "personal information comprising a principal's race, creed, social status, medical history, criminal record, fact of having suffered damage by a crime, or other descriptions etc. prescribed by Cabinet Order as those of which the handling requires special care so as not to cause unfair discrimination, prejudice or other disadvantages to the principal". These categories correspond for a large part to the list of sensitive data under Articles 9 and 10 of Regulation (EU) 2016/679. In particular, "medical history" corresponds to health data, while "criminal record and the fact of having suffered damage by a crime" are substantially the same as the categories referred to in Article 10 of Regulation (EU) 2016/679. The categories referred to in Article 2(3) of the APPI are subject to further interpretation in the Cabinet Order and PPC Guidelines. According to section 2.3 point (8) of the PPC Guidelines, the sub-categories of "medical history" detailed in Article 2(ii) and (iii) of the Cabinet Order are interpreted as covering genetic and biometric data. Also, while the list does not expressly include the terms "ethnic origin" and "political opinion", it does include references to "race" and "creed". As explained in section 2.3 points (1) and (2) of the PPC Guidelines, reference to "race" covers "ethnic ties or ties to a certain part of the world", while "creed" is understood as including both religious and political views.
As is clear from the wording of the provision, this is not a closed list as further categories of data can be added to the extent that their processing creates a risk of "unfair discrimination, prejudice or other disadvantages to the principal".
While the concept of "sensitive" data is inherently a social construct in that it is grounded in cultural and legal traditions, moral considerations, policy choices etc. of a given society, given the importance of ensuring adequate safeguards to sensitive data when transferred to business operators in Japan the Commission has obtained that the special protections afforded to "special care-required personal information" under Japanese law are extended to all categories recognised as "sensitive data" in Regulation (EU) 2016/679. To this end, Supplementary Rule (1) provides that data transferred from the European Union concerning an individual's sex life, sexual orientation or trade-union membership shall be processed by PIHBOs "in the same manner as special care-required personal information within the meaning of Article 2, paragraph 3 of the [APPI]".
Concerning the additional substantive safeguards applying to special care-required personal information, according to Article 17(2) of the APPI, PIHBOs are not allowed to acquire such type of data without prior consent of the individual concerned, subject only to limited exceptions (38). Furthermore, this category of personal information is excluded from the possibility of third party disclosure based on the procedure provided for under Article 23(2) of the APPI (allowing transmission of data to third parties without the prior consent of the individual concerned).