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| 'THE SHAPE OF JAPAN IN THE 21st CENTURY' SERIES, No. 20 The Road to Passage of the Personal Data Protection Law |
| 1. | The Problem | ||||||||||||||||||||
The Personal Data Protection Bill is under continuing discussion. The conflict between a person’s right to privacy and the right of others to know is being debated for the first time in some time. Interest in the community and related industry circles is considerably heightened, particularly as the freedom of the press to gather information is to be regulated. The way to resolve the issues is clear. The problem is grounded in the fact that a new legal system is being created in response to the development of high tech digital technology that rapidly processes large quantities of personal data that anyone can hold and access and the ongoing massive-scale introduction of this technology by the state and into the life of our community. It is hardly necessary to recollect how, in the decade from 1955, the state and industry joined forces to promote the development of a vehicular society during the expansion of motorization in Japan. We cannot adopt a system that goes against the trend of the times. The passage of the Personal Data Protection Law is therefore inescapable and should be carried out in a swift and positive manner. The difficulty lies in, when personal data is clearly defined, how to typically categorize the competing freedoms of expression, of business activity and of gathering information belonging to other persons and to enterprise, achieving a reasonable balance so as to facilitate the activities of both sides. It is key in this process to not overrate fears of an ideological infringement of privacy or that this or that personal data will be violated by others. The point is that the intention is to introduce data communications systems into community life in a rational manner and it must not be forgotten that adjustments made to competing human rights are no more than a method of doing this. Opposing the enactment of the Personal Data Protection Law, which is a method regulating adjustments to human rights, or delaying the enactment of the various laws, is inappropriate |
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| 2. | Peculiarities of Personal Data | ||||||||||||||||||||
| Personal data requires extremely delicate consideration. Firstly, there are already laws applying to those who make their living by disclosing personal data, beginning with copyright laws. Secondly, there is a realistic danger that extremely personal information, including that which one would not even want one’s family to know, be easily obtained via the internet or digital software and even instantly broadly distributed. Further, it is now easy to gather various kinds of data about a specific individual through a data communications system using a computer or network. Personal data is therefore both highly useful and highly dangerous. To give an analogous example, cars are extremely useful things for those who use them, however for those who are involved in car accidents they are extremely dangerous things, which may destroy life, health or future lifestyle. Personal data has a structure similar to the copyright law relating to an individual’s creative works expressing thoughts and feelings. Professor Kazuteru Tagayaof the Faculty of Law and Economics at Chiba University said, when interviewed by this magazine, Even if objective information such as patients' body temperatures and blood pressure readings is treated as the patients' property, the diagnosis is the doctor’s assessment. How should this be treated? We should recognize rights like the neighboring rights in copyright law and consider opening up medical information by giving legal protection to doctors’ interests. The Copyright Law firstly provides for the author’s interest as copyright and provides for the numerous sub-rights that derive from copyright. The right of ownership is also made up of numerous derivative sub-rights, a bundle of rights. Rights to personal data can also be conceptualized in the same way. In terms of copyright, the Copyright Law contains numerous regulations limiting rights (Articles 30-50 of the Copyright Law). Ownership rights are also limited. This being the case, the first matter under debate is what legal limits will be established in the Personal Data Protection Bill. These regulatory limits are necessary to root 'personal data protection' as a useful community intellectual property right in Japan. At first glance, regulatory limits appear to be a violation of personal data rights, however the fundamental principle of the symmetry of community life leads to the need to actively regulate these rights. The problems that arise at this point are settled by the 'contours of the balance between competing rights’after the event through mediation and court cases. The second matter under debate is the 'neighboring rights’issue. The neighboring rights laid down by the Copyright Law correspond to the limited property rights in the Property Law (such as the usufructuary right and the collateral right). Recognizing neighboring copyright is, looking at it in a macro sense, to expand the asset value of the original copyright and favorable from the perspective of the original copyright owner. The Personal Data Protection Bill lays out the duties of the business operator handling personal data (Articles 20-41), however, considering the situation bilaterally, this means that 'neighboring data rights' corresponding to the neighboring rights in the Copyright Law have been conferred on the business operator. Future individual laws will concretely regulate‘neighboring data rights’ (following the Copyright Law) and‘limited data rights’ (following the Property Law). Since this is law which targets rapidly advancing fields and geometrically progressing digital communications technology we should aim for speed, not falling behind the times. Adjustments should be left until after the event. This is a golden opportunity to break through the constraints of traditional Japanese legislative practices and precision in legislation and introduce western-style legislative techniques.
Diagram: This diagram demonstrates how individuals, property, intellectual property and personal data (privacy) is protected by the Japanese legal system, the limits on that protection and whether they are weighed against others' rights and freedoms. The outermost circle is the abstract conceptual space occupied by the right. The right in this abstract conceptual space is contracted according to balancing standards applied when others engage in similar activity (business activity / expressive activity). The middle circle shows the similar contraction of the rights of the party concerned due to public welfare or enforcement regulations. These two types of limitations are, basically, not so much qualitatively different as based on the fundamental principle of a reasonable division of interests vis a vis the human rights of others.  
 
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