Privacy in Japan: overview

A Q&A guide to privacy in Japan.

The Q&A guide gives a high-level overview of privacy rules and principles, including what national laws regulate the right to respect for private and family life and freedom of expression; to whom the rules apply and what privacy rights are granted and imposed. It also covers the jurisdictional scope of the privacy law rules and the remedies available to redress infringement.

To compare answers across multiple jurisdictions, visit the Privacy Country Q&A tool.

This article is part of the global guide to data protection. For a full list of contents, please visit www.practicallaw.com/dataprotection-guide.

Contents

Legislation

1. What national laws (if any) regulate the right to respect for private and family life and freedom of expression?

Japanese law does not explicitly provide for a right to privacy. However, it is now undisputed that individuals in Japan do have a right to privacy as against the government and private individuals.

Article 13 of the Japanese constitution provides for the right to "life, liberty, and the pursuit of happiness" and for the right for people to be "respected as individuals". That Article is often cited as the basis for the right to privacy in Japan. The constitution technically applies only to the relationship between the state and the individual. However, courts have referred to the standards of the constitutional right to privacy when applying the Civil Code in disputes between private individuals.

Statutory provisions also provide a basis for the right to privacy in Japan. These include:

  • Article 1-23 of the Minor Offence Act (forbids looking into another's dwelling).

  • Article 235-1 of the Civil Code (requires houses to be built in a way so that an occupant cannot see into the house of his neighbour).

  • Article 133 of the Criminal Code (prohibits opening private letters).

Data protection often overlaps with privacy concerns. The Act on the Protection of Personal Information (APPI) governs the processing of information that both (Law No. 57 of 2003, APPI):

  • Relates to a living individual.

  • Can be used to identify the individual. This includes information that can be easily combined or compared with other information to identify an individual.

See Data Protection Multi-jurisdictional Guide: Data protection in Japan: overview.

 

Freedom of expression

Article 21 of the Japanese constitution guarantees freedom of speech. An individual's right to free speech can conflict with another individual's right to privacy. Japanese courts have recognised a cause of action in tort if the individual's privacy interest outweighs the public's interest to have access to the information.

2. To whom do the privacy law rules apply?

The privacy law rules protect individuals located in Japan, including foreign nationals and minors. Privacy law rules do not protect legal entities. Public figures including government officials and celebrities have a right to privacy.

 
3. What privacy rights are granted and imposed?

Japanese courts have described the right to privacy as both:

  • The right to not have private affairs made public without due cause.

  • The right to control private information.

Courts usually apply the following four-pronged test to determine whether a claimant can pursue an action for a breach of privacy:

  • Is it reasonable to believe the disclosed information to be a fact related to the private affairs of the claimant?

  • Would an ordinary person in the claimant's situation desire to prevent disclosure of the information?

  • Is the information already public knowledge?

  • Has the claimant actually suffered mental distress due to the disclosure of the information?

To understand the nature and extent of the right to privacy in Japan, it helps to consider examples of cases where the courts have decided that there has been an actionable breach of privacy. Examples include:

  • Family relationships such as marriage and divorce. A politician, on whose private life a novel was based, had a cause of action against the publisher and author of the novel. The novel did not refer to the claimant by his real name, but did describe the claimant's marriage to, and divorce from, a restaurateur (Tokyo District Court decision, 28 September 1964 (the After the Banquet Incident) (Utage No Ato Jiken)).

  • Criminal records. A public official should not have disclosed the criminal record of the claimant at the request of a litigant in a separate civil litigation (Supreme Court decision, 14 April 1981 (the Criminal Record Reference Incident) (Zenka Shokai Jiken)).

  • Identifying information. A university committed a tort when it disclosed information to the police that identified attendees (student ID number, name, address, and telephone number) because there was no proper reason for the disclosure. Also, the attendees had not granted permission for the disclosure (Supreme Court decision, 12 September 2003 (the Lecture by Jiang Zemin at Waseda University Incident) (Kotakumin Koenkai Meibo Teishutsu Jiken)).

  • Medical condition affecting appearance. The author and publisher of a novel was liable as the novel described many aspects of the claimant's life in detail including the tumour on the claimant's face and the medical treatments the claimant underwent for the tumour (Supreme Court decision, 24 September 2002 (the Fish Swimming in the Stone Incident) (Ishi Ni Oyogu Sakana Jiken)).

  • Search engine results. On 9 October 2014, the Tokyo District Court ordered Google to stop displaying certain search results for the claimant's name because the results suggested that the claimant had committed a crime. A right to be forgotten has not been firmly established in Japan. However, this recent case suggests that Japanese courts might be moving in that direction.

 
4. What is the jurisdictional scope of the privacy law rules?

The privacy law rules protect individuals located in Japan (see Question 2).

 
5. What remedies are available to redress the infringement of those privacy rights?

An individual, whose right to privacy has been breached by an entity other than the Japanese government, can claim damages (Articles 709 and 710, Civil Code).

If defamation is involved, an individual can demand a public apology (Article 723, Civil Code).

Claims for damages against the Japanese government can be brought under the Act concerning State Liability for Compensation.

An individual can apply for an injunction to protect his or her right to privacy, for example, an injunction against publication, based on the Civil Provisional Remedies Act.

 

Contributor profiles

Mangyo Kinoshita, Local Partner

White & Case LLP

T +81 3 6384 3107
F +81 3 6384 3300
E mangyo.kinoshita@whitecase.com
W www.whitecase.com/mkinoshita/

Professional qualifications. Japan Bar; California State Bar

Areas of practice. Corporate; M&A.

Non-professional qualifications. LLM, Duke University, cum laude; Diploma, The Legal Training and Research Institute of The Supreme Court of Japan; LLB, Political Science, Keio University

Recent transactions

  • Advising on cross-border M&A and global technology transactions representing Japanese and global technology companies including: internet portal, mobile application, cyber security, online advertisement, social gaming and SNS companies.

  • Advising on data protection and privacy matters, including researching those issues in over 50 jurisdictions.

Languages. Japanese, English

Professional associations/memberships. Dai-ichi Tokyo Bar Association; California Bar Association

Publications

Co-author:

  • Overseas IPO Strategies for Global Japanese Companies, Business Homu, June to September 2012.

  • Triggered Poison Pills and the Delaware Court's Decision - Selectica, Inc v Versata Enterprises, Inc, Mergers & Acquisitions Research Report, August 2010.

  • Keys to Successful M&A Learned from Cancelled Deals, The Japanese M&A Review, July 2010.

Eric Kosinski, Associate

T +81 3 6384 3174
F +81 3 6384 3300
E ekosinski@whitecase.com
W www.whitecase.com/ekosinski/

Professional qualifications. New York State Bar, Massachusetts State Bar, Japanese Personal Information Protection Law Specialist

Areas of practice. Corporate; M&A.

Non-professional qualifications. JD, Temple University Beasley School of Law, 2006;

BA, Macalester College, 2001

Recent transactions

  • Advising on cross-border M&A involving Japan.

  • Advising on data protection law, advertising law, and employment law.

Languages. English, Japanese

Publications

Co-author:

  • Japan chapter, The International Comparative Legal Guide: Product Liability, 2014.

  • The Transfer of Undertakings in Asia: An EU or a US Approach?, Employment & Industrial Relations Law Newsletter, February 2010.

  • International Transfers of Personal Data - Treatment of Personal Data Transfers in Asia - Pacific Countries – Japan, International Privacy Guide, November 2009.

Kaori Sugimoto, Associate

White & Case LLP

T +81 3 6384 3300 (Tokyo)
F +81 3 3211 5252
E KSugimoto@tokyo.whitecase.com
W www.whitecase.com/ksugimoto

Professional qualifications. Japan Bar

Areas of practice. Corporate; M&A.

Non-professional qualifications. LLM with Wharton School of Business & Law Certificate, University of Pennsylvania Law School; Diploma, The Legal Training and Research Institute of the Supreme Court of Japan; Master's Degree in Law, Hitotsubashi University, Tokyo;

Bachelor of Laws, Hitotsubashi University, Tokyo

Recent transactions

  • Advising on cross-border and domestic Japanese M&A transactions, employment, intellectual property, anti-trust, commercial litigation, international arbitration and other general corporate matters.

  • Supporting Japanese companies in their corporate and M&A transactions in EMEA.

Languages. Japanese, English

Professional associations/memberships. Daini Tokyo Bar Association

Publications.

  • Co-Author: Issues related to political contributions, Business Houmu, 2012.

  • Author: Proxy Solicitation and Grounds for Revocation of a Resolution at a Shareholders Meeting, Business Houmu, 2012.


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