The Commission has carefully analysed Japanese law and practice. Based on the findings developed in recitals 6 to 175, the Commission concludes that Japan ensures an adequate level of protection for personal data transferred to organisations falling within the scope of application of the Act on the Protection of Personal Information (5) and subject to the additional conditions referred to in this Decision. These conditions are laid down in the Supplementary Rules (Annex I) adopted by the Personal Information Protection Commission (PPC) (6) and the official representations, assurances and commitments by the Japanese government to the European Commission (Annex II).

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.

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.

The scope of application of the APPI is determined by the defined concepts of Personal Information, Personal Data and Personal Information Handling Business Operator. At the same time, the APPI provides for some important exemptions from its scope, most importantly for Anonymously Processed Personal Data and for specific types of processing by certain operators. While the APPI does not use the term "processing", it relies on the equivalent concept of "handling" which, according to the information received from the PPC, covers "any act on personal data" including the acquisition, input, accumulation, organisation, storage, editing/processing, renewal, erasure, output, utilization, or provision of personal information.

First of all, as regards its material scope, the APPI distinguishes personal information from personal data, with only certain of the provisions of the Act being applicable to the former category. According to Article 2(1) of the APPI, the concept of "personal information" includes any information relating to a living individual which enables the identification of that individual. The definition distinguishes two categories of personal information: (i) individual identification codes; and (ii) other personal information whereby a specific individual can be identified. The latter category also includes information which by itself does not enable identification but, when "readily collated" with other information, allows the identification of a specific individual. According to the PPC Guidelines (16), whether information can be considered as "readily collated" shall be judged on a case by case basis, taking into consideration the actual situation ("condition") of the business operator. This will be assumed if such collation is (or can be) performed by an average ("normal") business operator using the means available to that operator. For instance, information is not "readily collated" with other information if a business operator needs to make unusual efforts or commit illegal acts to obtain the information to be collated from one or more other business operators.

Only certain forms of personal information fall within the notion of "personal data" under the APPI. In fact, "personal data" is defined as "personal information constituting a personal information database", i.e. a "collective body of information" comprising personal information "systematically organized so as to be able to search for particular personal information using a computer" (17) or "prescribed by cabinet order as having been systematically organized so as to be able to easily search for particular personal information" but "excluding those prescribed by cabinet order as having little possibility of harming an individual's rights and interests considering their utilization method" (18).

For data collected in Japan, this distinction between "personal information" and "personal data" is relevant because such information may not always be part of a "personal information database" (for example, a single data set collected and processed manually) and therefore those provisions of the APPI that only relate to personal data will not apply (19).

Requirements applicable to anonymously processed personal information, as defined in Article 2(9) of the APPI, are stipulated in Section 2 of Chapter 4 of the Act ("Duties of an Anonymously Processed Information Handling Business Operator"). Conversely, such information is not governed by the provisions of Section 1 of Chapter IV of the APPI which includes the articles stipulating the data protection safeguards and rights applying to the processing of personal data under that Act. Consequently, while "anonymously processed personal information" is not subject to the "standard" data protection rules (those specified in Section 1 of Chapter IV and in Article 42 of the APPI), they do fall within the scope of application of the APPI, notably Articles 36 to 39.

According to Article 2(9) of the APPI, "anonymously processed personal information" is information relating to an individual that has been "produced from processing personal information" through measures prescribed in the APPI (Article 36(1)) and specified in the PPC rules (Article 19), with the result that it has become impossible to identify a specific individual or restore the personal information.

It results from those provisions, as also confirmed by the PPC, that the process of rendering personal information "anonymous" does not need to be technically irreversible. Pursuant to Article 36(2) of the APPI, business operators handling "anonymously processed personal information" are merely required to prevent re-identification by taking measures to ensure the security of "the descriptions etc. and individual identification codes deleted from personal information used to produce the anonymously processed information, and information relating to a processing method carried out".

Given that "anonymously processed personal information", as defined by the APPI, includes data for which re-identification of the individual is still possible, this could mean that personal data transferred from the European Union might lose part of the available protections through a process that, under Regulation (EU) 2016/679, would be considered a form of "pseudonymisation" rather than "anonymisation" (thus not changing its nature as personal data).

To address that situation, the Supplementary Rules provide for additional requirements applicable only to personal data transferred from the European Union under this Decision. According to Rule (5) of the Supplementary Rules, such personal information shall only be considered "anonymously processed personal information" within the meaning of the APPI "if the personal information handling business operator takes measures that make the de-identification of the individual irreversible for anyone, including by deleting processing method etc. related information". The latter has been specified in the Supplementary Rules as information relating to descriptions and individual identification codes which were deleted from personal information used to produce "anonymously processed personal information", as well as information relating to a processing method applied while deleting these descriptions and individual identification codes. In other terms, the Supplementary Rules require the business operator producing "anonymously processed personal information" to destroy the "key" permitting re-identification of the data. This means that personal data originating from the European Union will fall under the APPI provisions regarding "anonymously processed personal information" only in cases where they would likewise be considered anonymous information under Regulation (EU) 2016/679 (22).

Concerning its personal scope, the APPI applies only to PIHBOs. A PIHBO is defined in Article 2(5) of the APPI as "a person providing a personal information database etc. for use in business", with the exclusion of the government and administrative agencies at both central and local level.

According to the PPC Guidelines, "business" means any "conduct aimed at exercising, for a certain goal, regardless of whether or not for profit, repeatedly and continuously, a socially recognised enterprise". Organisations without legal personality (such as de facto associations) or individuals are considered as a PIHBO if they provide (use) a personal information database etc. for their business (23). Therefore, the notion of "business" under the APPI is very broad in that it includes not only for-profit but also not-for-profit activities by all kinds of organisations and individuals. Moreover, "use in business" also covers personal information that is not used in the operator's (external) commercial relationships, but internally, for instance the processing of employee data.

The relevant categories for the sectoral exclusion in Article 76 of the APPI are defined by using a double criterion based on the type of PIHBO processing the personal information and the purpose of processing. More specifically, the exclusion applies to: (i) broadcasting institutions, newspaper publishers, communication agencies or other press organisations (including any individuals carrying out press activities as their business) to the extent they process personal information for press purposes; (ii) persons engaged in professional writing, to the extent this involves personal information; (iii) universities and any other organisations or groups aimed at academic studies, or any person belonging to such an organisation, to the extent they process personal information for the purpose of academic studies; (iv) religious bodies to the extent they process personal information for purposes of religious activity (including all related activities); and (v) political bodies to the extent they process personal information for the purposes of their political activity (including all related activities). Processing of personal information for one of the purposes listed in Article 76 by other types of PIHBOs as well as processing of personal information by one of the listed PIHBOs for other purposes, for instance in the employment context, remain covered by the provisions of Chapter IV.

In order to ensure an adequate level of protection of personal data transferred from the European Union to business operators in Japan, only processing of personal information falling within the scope of Chapter IV of the APPI – i.e. by a PIHBO to the extent the processing situation does not correspond to one of the sectoral exclusions – should be covered by this Decision. Its scope should therefore be aligned to that of the APPI. According to the information received from the PPC, where a PIHBO covered by this Decision subsequently modifies the utilisation purpose (to the extent this is permissible) and would then be covered by one of the sectoral exclusions in Article 76 of the APPI, this would be considered as an international transfer (given that, in such cases, the processing of the personal information would no longer be covered by Chapter IV of the APPI and thus fall outside its scope of application). The same would apply in case a PIHBO provides personal information to an entity covered by Article 76 of the APPI for use for one of the processing purposes indicated in that provision. As regards personal data transferred from the European Union, this would therefore constitute an onward transfer subject to the relevant safeguards (notably those specified in Article 24 of the APPI and Supplementary Rule (4)). Where the PIHBO relies on the data subject's consent (25), it would have to provide him/her with all the necessary information, including that the personal information would no longer be protected by the APPI.

Moreover, under Article 16(1) of the APPI, PIHBOs are prohibited from handling personal information beyond the "necessary scope to achieve a utilization purpose" specified under Article 15 without obtaining in advance a data subject's consent, unless one of the derogations in Article 16(3) applies (27).

When it comes to personal information acquired from another business operator, the PIHBO is, in principle, free to set a new utilisation purpose (28). In order to ensure that, in case of a transfer from the European Union, such a recipient is bound by the purpose for which the data was transferred, Supplementary Rule (3) requires that, in cases "where a [PIHBO] receives personal data from the EU based on an adequacy decision" or such an operator "receives from another [PIHBO] personal data previously transferred from the EU based on an adequacy decision" (onward sharing), the recipient has to "specify the purpose of utilising the said personal data within the scope of the utilisation purpose for which the data was originally or subsequently received". In other words, the rule ensures that in a transfer context the purpose specified pursuant to Regulation (EU) 2016/679 continues to determine the processing, and that a change of that purpose at any stage of the processing chain in Japan would require the consent of the EU data subject. While obtaining this consent requires the PIHBO to contact the data subject, where this is not possible the consequence is simply that the original purpose has to be maintained.

Under the APPI, when a PIHBO collects personal information, it is required to specify the purpose of utilising the personal information in a detailed manner (29) and promptly inform the data subject of (or disclose to the public) this utilisation purpose (30). In addition, Article 17 of the APPI provides that a PIHBO shall not acquire personal information by deceit or other improper means. As regards certain categories of data such as special-care required personal information, their acquisition requires the consent of the data subject (Article 17(2) of the APPI).

Subsequently, as explained in recitals 41 and 42, the PIHBO is prohibited from processing the personal information for other purposes, except where the data subject consents to such processing or where one of the derogations pursuant to Article 16(3) of the APPI applies.

Finally, when it comes to the further provision of personal information to a third party (31), Article 23(1) of the APPI limits such disclosure to specific cases, with the prior consent by the data subject as the general rule (32). Article 23(2), (3) and (4) of the APPI provide for exceptions to the requirement to obtain consent. However, these exceptions do only apply to non-sensitive data and require that the business operator in advance informs the individuals concerned of the intention to disclose their personal information to a third party and the possibility to object to any further disclosure (33).

These principles are ensured in Japanese law by Article 16(1) of the APPI, which prohibits the handling of personal information beyond "the necessary scope to achieve a utilisation purpose". As explained by the PPC, this not only excludes the use of data that is not adequate and the excessive use of data (beyond what is necessary for achieving the utilisation purpose), but also entails the prohibition to handle data not relevant for the achievement of the utilisation purpose.

As concerns the obligation to keep data accurate and up to date, Article 19 of the APPI requires the PIHBO to "strive to keep personal data accurate and up-to-date within the scope necessary to achieve a utilisation purpose". That provision should be read together with Article 16(1) of the APPI: according to the explanations received from the PPC, if a PIHBO fails to meet the prescribed standards of accuracy, the processing of the personal information will not be considered as achieving the utilisation purpose and hence, its handling will become unlawful under Article 16(1).

According to Article 19 of the APPI, PIHBOs are required to "strive […] to delete the personal data without delay when such utilisation has become unnecessary". That provision needs to be read in conjunction with Article 16(1) of the APPI prohibiting the handling of personal information beyond "the necessary scope to achieve a utilisation purpose". Once the utilisation purpose has been achieved, processing of personal information cannot be considered necessary anymore and, hence, cannot continue (unless the PIHBO obtains the data subject's consent to do so).

This principle is implemented in Japanese law by Article 20 of the APPI, providing that a PIHBO "shall take necessary and appropriate action for the security control of personal data including preventing the leakage, loss or damage of its handled personal data." The PPC Guidelines explain the measures to be taken, including the methods for the establishment of basic policies, data handling rules and various "control actions" (regarding organisational safety as well as human, physical and technological security) (35). In addition, the PPC Guidelines and a dedicated Notice (Appendix 8 on "Contents of the safety management measures that have to be taken") published by the PPC provide more details on measures concerning security incidents involving, for example, the leakage of personal information, as part of the security management measures to be taken by PIHBOs (36).

Furthermore, whenever personal information is handled by employees or sub-contractors, "necessary and appropriate supervision" must be ensured under Articles 20 and 21 of the APPI for security control purposes. Finally, pursuant to Article 83 of the APPI, intentional leakage or theft of personal information is punishable by a sanction of up to one year of imprisonment.

Article 18(1) of the APPI requires the PIHBO to make information about the utilisation purpose of the personal information acquired available to the data subject, except for "cases where a utilisation purpose has been disclosed in advance to the public". The same obligation applies in case of a permissible change of purpose (Article 18(3)). This also ensures that the data subject is informed of the fact that his/her data has been collected. Although the APPI does not generally require the PIHBO to inform the data subject about the expected recipients of personal information at the stage of collection, such information is a necessary condition for any subsequent disclosure of information to a third party (recipient) based on Article 23(2), hence where this is done without prior consent of the data subject.

"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.

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).

Finally, the APPI creates a framework for the participation of sectoral industry organisations in ensuring a high level of compliance (see Chapter IV, Section 4). The role of such accredited personal information protection organisations (40) is to promote the protection of personal information by supporting businesses through their expertise, but also to contribute to the implementation of safeguards, notably by handling individual complaints and helping to solve related conflicts. To that end, they may request participating PIHBOs, if appropriate, to adopt necessary measures (41). Moreover, in case of data breaches or other security incidents PHIBOs shall in principle inform the PPC as well as the data subject (or the public) and take necessary action, including measures to minimise any damage and to prevent any recurrence of similar incidents (42). While those are voluntary schemes, on 10 August 2017 the PPC had listed 44 organisations, with the largest one, Japan Information Processing and Development Center (JIPDEC), alone counting 15 436 participating business operators (43). Accredited schemes include sector associations such as for instance the Japan Securities Dealers Association, the Japan Association of Car Driving Schools or the Association of Marriage Brokers (44).

Accredited personal information protection organisations submit annual reports on their operations. According to the "Overview of the Implementation Status [of] the APPI in FY 2015" published by the PPC, accredited personal information protection organisations received a total of 442 complaints, required 123 explanations from business operators under their jurisdiction, requested documents from these operators in 41 cases, gave 181 instructions and made two recommendations (45).

Article 9 of the Cabinet Order specifies that disclosure of personal information as referred to in Article 28(2) of the APPI shall be performed in writing, unless the PIHBO and the data subject have agreed otherwise.

Third, pursuant to Article 30(1) and (2) of the APPI a data subject has a right to request from a PIHBO to discontinue using personal information, or to delete such information, when it is handled in violation of Article 16 (regarding purpose limitation) or has been improperly acquired in violation of Article 17 of the APPI (regarding acquisition by deceit, other improper means or, in case of sensitive data, without consent). Likewise, under Article 30(3) and (4) of the APPI, the individual has a right to request from the PIHBO to cease the provision of the information to a third party where this would violate the provisions of Article 23(1) or Article 24 of the APPI (regarding third party provision, including international transfers).

Finally, the individual may object to the provision of his/her personal information to a third party under Article 23(2) of the APPI, or refuse consent under Article 23(1) (thus preventing disclosure in case no other legal basis would be available). Likewise, the individual can stop the processing of data for a different purpose by refusing to provide consent pursuant to Article 16(1) of the APPI.

The powers of the PPC, which it exercises in full independence (58), are mainly provided for in Articles 40, 41 and 42 of the APPI. Under Article 40, the PPC may request PIHBOs to report or submit documents on processing operations and may also carry out inspections, both on-site and of books or other documents. To the extent necessary to enforce the APPI, the PPC may also provide PIHBOs with guidance or advice as regards the handling of personal information. The PPC has already made use of this power under Article 41 APPI by addressing guidance to Facebook, following the Facebook/Cambridge Analytica revelations.

Although not all provisions of Chapter IV, Section 1 of the APPI are listed in Article 42(1) – which also determines the scope of application of Article 42(2) – this can be explained by the fact that certain of those provisions do not concern obligations of the PIHBO (59) and that all essential protections are already afforded by other provisions that are included in that list. For instance, although Article 15 (requiring the PIHBO to set the utilisation purpose and process the relevant personal information exclusively within its scope) is not mentioned, failure to observe this requirement can give ground to a recommendation based on a violation of Article 16(1) (prohibiting the PIHBO to process personal information beyond what is necessary to achieve the utilisation purpose, unless it obtains the data subject's consent) (60). Another provision not listed in Article 42(1) is Article 19 of the APPI on data accuracy and retention. Non-compliance with that provision can be enforced either as a violation of Article 16(1) or based on a violation of Article 29(2), if the individual concerned asks for the correction or deletion of erroneous or excessive data and the PIHBO refuses to satisfy the request. As regards the rights of the data subject according to Articles 28(1), 29(1) and 30(1), oversight by the PPC is ensured by granting it enforcement powers with respect to the corresponding obligations of the PIHBO laid down in those Articles.

Third, in addition to civil law (tort) remedies, a data subject may file a complaint with a public prosecutor or judicial police official with respect to APPI violations that can lead to criminal sanctions. Chapter VII of the APPI contains a number of penal provisions. The most important one (Article 84) relates to non-compliance by the PIHBO with PPC orders pursuant to Article 42(2) and (3). If a business operator fails to comply with an order issued by the PPC, the PPC Chair (as well as any other government official) (66) may forward the case to the public prosecutor or judicial police official and in that way trigger the opening of a criminal procedure. The penalty for the violation of a PPC order is imprisonment with labour for up to six months or a fine of up to 300 000 yen. Other provisions of the APPI providing for sanctions in case of APPI violations affecting the rights and interests of data subjects include Article 83 of the APPI (regarding the "providing or using by stealth" of a personal information database "for the purpose of seeking […] illegal profits") and Article 88(i) of the APPI (regarding the failure by a third party to correctly inform the PIHBO when the latter receives personal data in accordance with Article 26(1) of the APPI, in particular on the details of the third party's own, prior acquisition of such data). The applicable penalties for such violations of the APPI are, respectively, imprisonment with work for up to one year or a fine of up to 500 000 yen (in case of Article 83) or an administrative fine of up to 100 000 yen (in case of Article 88(i)). While the threat of a criminal sanction is already likely to have a strong deterrent effect on the business management that directs the PIHBO's processing operations as well as on the individuals handling the data, Article 87 of the APPI clarifies that when a representative, employee or other worker of a corporate body has committed a violation pursuant to Articles 83 to 85 of the APPI, "the actor shall be punished and a fine set forth in the respective Articles shall be imposed on the said corporate body". In this case, both the employee and the company can be imposed sanctions up to the full maximum amount.

As an exercise of public authority, government access in Japan must be carried out in full respect of the law (legality principle). In this regard, the Constitution of Japan contains provisions limiting and framing the collection of personal data by public authorities. As already mentioned with respect to processing by business operators, basing itself on Article 13 of the Constitution which among others protects the right to liberty, the Supreme Court of Japan has recognised the right to privacy and data protection (72). One important aspect of that right is the freedom not to have one's personal information disclosed to a third party without permission (73). This implies a right to the effective protection of personal data against abuse and (in particular) illegal access. Additional protection is ensured by Article 35 of the Constitution on the right of all persons to be secure in their homes, papers and effects, which requires from public authorities to obtain a court warrant issued for "adequate cause" (74) in all cases of "searches and seizures". In its judgment of 15 March 2017 (GPS case), the Supreme Court has clarified that this warrant requirement applies whenever the government invades ("enters into") the private sphere in a way that suppresses the individual's will and thus by means of a "compulsory investigation". A judge may only issue such warrant based on a concrete suspicion of crimes, i.e. when provided with documentary evidence based on which the person concerned by the investigation can be considered as having committed a criminal offence (75). Consequently, Japanese authorities have no legal authority to collect personal information by compulsory means in situations where no violation of the law has yet occurred (76), for example in order to prevent a crime or other security threat (as is the case for investigations on grounds of national security).

As regards specifically the right to data protection, Chapter III, Sections 1, 2 and 3 of the APPI lays down general principles covering all sectors, including the public sector. In particular, Article 3 of the APPI provides that all personal information must be handled in accordance with the principle of respect for the personality of individuals. Once personal information, including as part of electronic records, has been collected ("obtained") by public authorities (78), its handling is governed by the Act on the Protection of Personal Information held by Administrative Organs ("APPIHAO") (79). This includes in principle (80) also the processing of personal information for criminal law enforcement or national security purposes. Among others, the APPIHAO provides that public authorities: (i) may only retain personal information to the extent this is necessary for carrying out their duties; (ii) shall not use such information for an "unjust" purpose or disclose it to a third person without justification; (iii) shall specify the purpose and not change that purpose beyond what can reasonably be considered as relevant for the original purpose (purpose limitation); (iv) shall in principle not use or provide a third person with the retained personal information for other purposes and, if they consider this necessary, impose restrictions on the purpose or method of use by third parties; (v) shall endeavour to ensure the correctness of the information (data quality); (vi) shall take the necessary measures for the proper management of the information and to prevent leakage, loss or damage (data security); and (vii) shall endeavour to properly and expeditiously process any complaints regarding the processing of the information (81).

To the extent such a request is directed at a business operator and concerns personal information, the business operator has to comply with the requirements of the APPI. According to Article 23(1) of the APPI, business operators may disclose personal information to third parties without consent of the individual concerned only in certain cases, including where the disclosure is "based on laws and regulations" (89). In the area of criminal law enforcement, the legal basis for such requests is provided by Article 197(2) of the CCP according to which "private organisations may be asked to report on necessary matters relating to the investigation." Since such an "enquiry sheet" is permissible only as part of a criminal investigation, it always presupposes a concrete suspicion of an already committed crime (90). Moreover, since such investigations are generally carried out by the Prefectural Police, the limitations pursuant to Article 2(2) of the Police Law (91) apply. According to that provision, the activities of the police are "strictly limited" to the fulfilment of their responsibilities and duties (that is to say the prevention, suppression and investigation of crimes). Moreover, in performing its duties, the police shall act in an impartial, unprejudiced and fair manner and must never abuse its powers "in such a way as to interfere with the rights and liberties of an individual guaranteed in the Constitution of Japan" (which include, as indicated, the right to privacy and data protection) (92).

Second, according to Article 62 of the Constitution, each House of the Japanese parliament (the Diet) may conduct investigations in relation to the government, including with respect to the lawfulness of information collection by the police. To that end, it may demand the presence and testimony of witnesses, and/or the production of records. Those powers of inquiry are further specified in the Diet Law, in particular Chapter XII. In particular, Article 104 of the Diet Law provides that the Cabinet, public agencies and other parts of the government "must comply with the requests of a House or any of its Committees for the production of reports and records necessary for consideration of investigation." Refusal to comply is allowed only if the government provides a plausible reason found acceptable by the Diet, or upon issuance of a formal declaration that the production of the reports or records would be "gravely detrimental to the national interest" (106). In addition, Diet members may ask written questions to the Cabinet (Articles 74, 75 of the Diet Law), and in the past such "written inquiries" have also addressed the handling of personal information by the administration (107). The Diet's role in supervising the executive is supported by reporting obligations, for instance pursuant to Article 29 of the Wiretapping Act.

In addition, with respect to the correct application of the APPIHAO, the competent minister or agency head (e.g. the Commissioner General of the NPA) has enforcement authority, subject to the supervision by the Ministry of Internal Affairs and Communications (MIC). According to Article 49 APPIHAO, the MIC "may collect reports on the status of enforcement of this Act" from the heads of Administrative Organs (Minister). That oversight function is supported by input from MIC's 51 "comprehensive information centres" (one in each Prefecture throughout Japan) that each year handle thousands of inquiries from individuals (114) (which, in turn, may reveal possible violations of the law). Where it considers this necessary for ensuring compliance with the Act, MIC may request the submission of explanations and materials, and issue opinions, concerning the handling of personal information by the concerned Administrative Organ (Articles 50, 51 APPIHAO).

First, with respect to personal information collected by Administrative Organs, the latter are under an obligation to "endeavour to properly and expeditiously process any complaints" regarding its subsequent processing (Article 48 of the APPIHAO). While Chapter IV of the APPIHAO on individual rights is not applicable with respect to personal information recorded in "documents relating to trials and seized articles" (Article 53-2(2) of the CCP) – which covers personal information collected as part of criminal investigations – individuals may bring a complaint to invoke the general data protection principles such as for instance the obligation to only retain personal information "when the retention is necessary for performing [law enforcement functions]" (Article 3(1) of the APPIHAO).

Under the mechanism, an individual who suspects that his/her data transferred from the European Union has been collected or used by public authorities in Japan (including those responsible for criminal law enforcement) in violation of the applicable rules can submit a complaint to the PPC (individually or though his/her data protection authority within the meaning of Article 51 of the GDPR). The PPC will be under an obligation to handle the complaint and in a first step inform the competent public authorities, including the relevant oversight bodies, thereof. Those authorities are required to cooperate with the PPC, "including by providing the necessary information and relevant material, so that the PPC can evaluate whether the collection or the subsequent use of personal information has taken place in compliance with the applicable rules" (117). This obligation, derived from Article 80 of the APPI (requiring Japanese public authorities to co-operate with PPC), applies in general and hence extends to the review of any investigatory measures taken by such authorities, which moreover have committed to such cooperation through written assurances from the competent ministries and agency heads, as reflected in Annex II.

If the evaluation shows that an infringment of the applicable rules has occurred, "cooperation by the concerned public authorities with the PPC includes the obligation to remedy the violation", which in case of the unlawful collection of personal information covers the deletion of such data. Importantly, this obligation is carried out under the supervision of the PPC which will "confirm, before concluding the evaluation, that the violation has been fully remedied".

Fourth, as a more indirect form of judicial control, an individual who considers that the collection of his/her personal information as part of a criminal investigation was illegal may, at his/her criminal trial, invoke this illegality. If the court agrees, this will lead to the exclusion of the evidence as inadmissible.

Finally, under Article 1(1) of the State Redress Act a court may grant compensation where a public officer who exercises the public authority of the State has, in the course of his/her duties, unlawfully and with fault (intentionally or negligently) inflicted damage on the individual concerned. According to Article 4 of the State Redress Act, the State's liability for damages is based on the provisions of the Civil Code. In this respect, Article 710 of the Civil Code stipulates that liability also covers damages other than those to property, and hence moral damage (for instance in the form of "mental distress"). This includes cases where the privacy of an individual has been invaded by unlawful surveillance and/or the collection of his/her personal information (e.g. the illegal execution of a warrant) (121).

This includes making use of the procedural rights under the Code of Criminal Procedure. For instance, "[w]here the evaluation reveals that an individual is a suspect in a criminal case, the PPC will inform the individual about that fact" (123) as well as the possibility pursuant to Article 259 of the CCP to ask the prosecution to be notified once the latter has decided not to initiate criminal proceedings. Also, if the evaluation reveals that a case involving the personal information of the individual has been opened and that the case is concluded, the PPC will inform the individual that the case record can be inspected pursuant to Article 53 of the CCP (and Article 4 of the Act on Final Criminal Case Records). Gaining access to his/her case record is important as it will help the individual to better understand the investigation carried out against him/her and thus to prepare an eventual court action (e.g. a damages claim) in case (s)he considers his/her data was unlawfully collected or used.

Finally, the PSIA may carry out investigations under the Subversive Activities Prevention Act ("SAPA") and the Act on the Control of Organisations Which Have Committed Acts of Indiscriminate Mass Murder ("ACO") where such investigations are necessary to prepare the adoption of control measures against certain organisations (126). Under both Acts, upon request by the Director-General of the PSIA the Public Security Examination Commission may issue certain "dispositions" (surveillance/prohibitions in the case of the ACO (127), dissolution/prohibitions in the case of the SAPA (128) and in this context the PSIA may carry out investigations (129). According to the information received, these investigations are always conducted on a voluntary basis, meaning that the PSIA may not force an owner of personal information to provide such information (130). Each time, controls and investigations shall be conducted only to the minimum extent necessary to achieve the control purpose and shall not under any circumstances be carried out to "unreasonably" restrict the rights and freedoms guaranteed under the Constitution of Japan (Article 3(1) of SAPA/ACO). Moreover, according to Article 3(2) of the SAPA/ACO, the PSIA must under no circumstances abuse such controls, or the investigations carried out to prepare such controls. If a Public Security Intelligence Officer has abused his/her authority under the respective Act by forcing a person to do anything which the person is not required to, or by interfering with the exercise of a person's rights, (s)he may be subject to criminal sanctions pursuant to Article 45 SAPA or Article 42 ACO. Finally, both Acts explicitly prescribe that their provisions, including the powers granted therein, shall "not under any circumstances be subject to an expanded interpretation" (Article 2 of SAPA/ACO).

Also, once collected, any personal information retained by public authorities for national security purposes will fall under and thus benefit from the protections under the APPIHAO when it comes to its subsequent storage, use and disclosure (see recital 118).

The collection of personal information for national security purposes is subject to several layers of oversight from the three branches of government.

As regards MOD, oversight is exercised by the Inspector General's Office of Legal Compliance (IGO) (134) that has been established based on Article 29 of the MOD Establishment Act as an office within the MOD under the supervision of the Minister of Defence (to which it reports) but independent from MOD's operational departments. The IGO has the task of ensuring compliance with laws and regulations as well as the proper execution of duties by MOD officials. Among its powers is the authority to carry out so-called "Defence Inspections", both at regular intervals ("Regular Defence Inspections") and in individual cases ("Special Defence Inspections"), which in the past have also covered the proper handling of personal information (135). In the context of such inspections, the IGO may enter sites (offices) and request the submission of documents or information, including explanations by the Deputy Vice-Minister of the MOD. The inspection is concluded through a report to the Minister of Defence setting out the findings and measures for improvement (the implementation of which can again be checked through further inspections). The report in turn forms the basis for instructions from the Minister of Defence to implement the measures necessary to address the situation; the Deputy Vice-Minister is charged with carrying out such measures and has to report on the follow-up.

As regards individual redress, with respect to personal information collected and thus "retained" by Administrative Organs, the latter are under an obligation to "endeavour to properly and expeditiously process any complaints" regarding such processing (Article 48 APPIHAO).

Moreover, unlike for criminal investigations, individuals (including foreign nationals living abroad) have in principle a right to disclosure (139), correction (including deletion) and suspension of use/provision under the APPIHAO. This being said, the head of the Administrative Organ may refuse disclosure with respect to information "for which there are reasonable grounds […] to find that disclosure is likely to cause harm to national security" (Article 14(iv) APPIHAO) and may even do so without revealing the existence of such information (Article 17 APPIHAO). Likewise, while an individual may request suspension of use or deletion pursuant to Article 36(1)(i) APPIHAO in case the Administrative Organ has obtained the information unlawfully or retains/uses it beyond what is necessary to achieve the specified purpose, the authority may reject the request if it finds that the suspension of use "is likely to hinder the proper execution of the affairs pertaining to the Purpose of Use of the Retained Personal Information due to the nature of the said affairs" (Article 38 APPIHAO). Still, where it is possible to easily separate and exclude portions that are subject to an exception, Administrative Organs are required to grant at least partial disclosure (see e.g. Article 15(1) APPIHAO) (140).

In any event, the Administrative Organ has to take a written decision within a certain period (30 days, which under certain conditions can be extended by an additional 30 days). If the request is rejected, only partially granted, or if the individual for other reasons considers the conduct of the Administrative Organ to be "illegal or unjust", the individual may request administrative review based on the Administrative Complaint Review Act (141). In such a case, the head of the Administrative Organ deciding on the appeal shall consult the Information Disclosure and Personal Information Protection Review Board (Articles 42, 43 APPIHAO), a specialised, independent board whose members are appointed by the Prime Minister with consent of both Houses of the Diet. According to the information received, the Review Board may carry out an examination (142) and in this respect request the Administrative Organ to provide the retained personal information, including any classified content, as well as further information and documents. While the ultimate report sent to the complainant as well as the Administrative Organ and made public is not legally binding, it is in almost all cases followed (143). Moreover, the individual has the possibility to challenge the appeal decision in court based on the Administrative Case Litigation Act. This opens the way for judicial control of the use of the national security exception(s), including of whether such an exception has been abused or is still justified.

In order to facilitate the exercise of the above-mentioned rights under the APPIHAO, the MIC has established 51 "comprehensive information centres" that provide consolidated information on those rights, the applicable procedures to make a request and possible avenues for redress (144). As regards the Administrative Organs, they are required to provide "information that contributes to specifying the Retained Personal Information held" (145) and to take "other adequate measures in consideration of the convenience of the person who intends to make the request" (Article 47(1) of the APPIHAO).