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THE CONSTITUTION AND THE CIVIL CODE

We can start with the strongest legal right of all: the Constitution of Japan.

Practical Law (uk.practicallaw.com/country/japan) explains:

The “right to privacy” for individuals is derived from a general right to the “pursuit of happiness”; a right from which invasions of privacy commonly detract.

The Supreme Court generally defines this as a right which prohibits reckless or otherwise arbitrary disclosure of information about an individual’s private life.

You may have also noticed that Practice Law previously made mention of the Civil Code, so let’s take a look at that, too, to see how it factors into the equation:

Practical Law (uk.practicallaw.com/country/japan) further elaborates:

In conclusion, we can see that the individual right to privacy is recognized by both the Japanese Constitution and the Civil Code, and (of course) also extends to protect foreign nationals.

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PRIVACY AND TORT LAW

If your privacy has been violated, what can you do about it?

The answer can be find in tort law (specifically: Chapter 5 of the Civil Code).

For those who may not be familiar with tort:

Such “common laws” tend to address such things as intentional torts (assault; false imprisonment; psychological abuse; etc), property torts (trespassing; detinue; etc), negligence (proximate cause; malpractice; etc), liability (product recalls; etc), nuisances (public intoxication; public nudity; etc), fraud, and many others.

In Japan, tort law also offers victim of violations of privacy the means by which to seek legal action against their tortfeasors.

Therefore, if (for example) someone takes your photo without your consent, you have a legal right to have that photo deleted, otherwise you are equally within your right to sue them as per tort law.

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PRIVACY AND THE PERSONAL INFORMATION ACT (APPI)

What happens if you sign an employment contract which essentially requires you to waive your right to privacy, though?

Doesn’t the act of signing the contract binds you to whatever clause a company has inserted, giving them the right to invade your privacy without your consent?

As we’ve stated before, signing a contract does not mean that you automatically agree with every clause in that contract, and contract clauses are always superseded by the law (and, this, rendered invalid). In a nutshell, if a clause conflicts with the law, the law wins every time.

Even if the clauses are valid, that doesn’t mean that they give a company carte blanche to do whatever they like depending on how creative they want to be with their interpretation of those clauses.

In the case of gathering personal information, a business is meant to ask you for your consent, and explain why (and for what purpose) they want your personal information.

Such requirements are covered by the Act on the Protection of Personal Information (APPI):

There are a few exceptions to these articles, however.

There are certain kinds of personal information that an employer must obtain because it is necessary for your employment. For example, your name, date of birth, and home address, are all types of personal information that a business or other entity needs to be able to have access to in order for them to function as an employer.

That being said, even in these cases, consent must be given by the individual, and an employer may not seek to gain this information by deceptive means, nor is an employer permitted to give this information to a third-party without permission (except under certain circumstances).

In addition, the employer needs to give a clear reason as to why they want to obtain the individual’s private information to begin with.

Furthermore, an employer has a legal duty to ensure that your private information is protected:

Finally, upon leaving a company, you have the right (within acceptable reason) to ask your former employer to delete your private information:

If you want to read the APPI in more detail, you can do so here: Act on the Protection of Personal Information (PDF)

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ON GIVING CONSENT

On the subject of “giving consent”, it should be noted that the APPI does not explicitly state what kind of consent is required in these situation.

Is implied consent enough (e.g. “You smiled for the photo.”), or must an employer get explicit consent in the form of a written document?

The European Commission’s “COMPARATIVE STUDY ON DIFFERENT APPROACHES TO NEW PRIVACY CHALLENGES (B.5 – JAPAN)” offers these thoughts on the matter:

It seems that the law (or, rather, guidelines on interpreting the law) is that written consent should always be acquired, and that oral consent is usually not enough to grant permission to an entity that’s seeking your private information.

Implied consent, however, may be treated on a “case-by-case” basis, depending on the circumstances.

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IN CONCLUSION…

What did we learn from this?

We’ve discovered that an individual’s right to privacy is protected by Article 16 of the Constitution, with the Civil Code’s tort law further protecting those rights while also offering recourse and compensation against tortfeasors.

We learned that the Act on the Protection of Personal Information (APPI) extensively details how an entity must seek, use, and protect, your private information.

Finally, we became aware that the METI’s Privacy Guidelines outline how consent should be attained from an individual, and that oral and implied consent are inadequate for attaining permission to collect and use private information.

There is, of course, much more that can be said and explored in regards to the issue of privacy in Japan and how those privacy issues might directly affect you.

However, those deeper issues are, perhaps, best left for other articles, as situations arise.

Be that as it may, we hope that you find this information to be useful during your time in Japan!

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