JAPAN Law and Practice Contributed by: Yoshifumi Onodera, Hiroyuki Tanaka, Naoto Shimamura and Rio Ichii, Mori Hamada & Matsumoto
see 4.1 Use of Cookies . It is good practice to have a cookie policy and to offer an opt-out from using cookies (especially for behavioural advertising). The Japan Interactive Advertising Association’s guidelines are useful for gaining an understanding of good prac - tices in Japan. Effective since June 2023, the TBA imposed new obli - gations on TSPs, which have a non-trivial impact on users’ interests. More specifically, a TSP is an entity that provides: • any services of intermediating telecommunica - tion of others, such as email or direct messaging services; • social media services, bulletin board systems, movie sharing services, online shopping malls, live streaming services, online games, online education or the like; • online search engines; or • various information, such as news, weather, movies and maps, to unspecified people. When a TSP makes users send their information (typi - cally including cookies) to an external party, the TSP is required to make a notification or public announce - ment, obtain opt-in consent or provide an opt-out mechanism with respect to certain information, including the content of the information, the name of the recipient party and the recipient’s purpose of use of the information. 4.3 Employment Privacy Law The Ministry of Health, Labour and Welfare (MHLW) has issued a notice regarding the handling of health information of employees by employers, including a condition that the employer shall not handle such information beyond the scope necessary to secure its employees’ health. Furthermore, to prevent discrimination, the Employ - ment Security Act has special restrictions on obtaining information about job applicants during their recruit - ment. The employer has the right to monitor workplace com - munications in relation to work and to use cyberse - curity tools, insider threat detection and prevention
In this regard, the transfer of personal data to third parties – whether the data is personal data or not – is determined based on the circumstances surrounding the transferor, not the transferee. In brief, if the data is not personal data in the hands of the transferor, regulations regarding the transfer of personal data to third parties are not applicable. In the past, some schemes emerged whereby data management platforms provided non-personal infor - mation such as user data collected by cookies (eg, user browsing histories, interests, preferences) to third parties, with the knowledge that the data will be personal data in the hands of the recipient. The PPC was concerned by the expansion of this kind of data-sharing without the involvement of (control by) the data subjects. As a result, the concept of personally referable infor - mation was introduced in April 2022, defined as a collective set of information comprising information relating to living individuals that does not fall under personal information or pseudonymously or anony - mously processed information but that has been systematically organised to be searchable using a computer for specific personally referable or similar information prescribed by cabinet order. The APPI regulates the provision of personally referable infor - mation if the provider assumes that recipients will acquire a database of the provided personally ref - erable information as personal data. In such cases, the transferor must confirm that the transferee has obtained the data subjects’ consent to transfer their data as personal data. Please also refer to 4.2 Personalised Advertising and Other Online Marketing Practices for the TBA regu - lation for technology to send information to external parties. 4.2 Personalised Advertising and Other Online Marketing Practices Behavioural advertising is not directly regulated under the APPI, but any personal information collected to provide such advertising is subject to the law. For example, the APPI has regulations for certain cook - ies, web beacons and other tracking technology underlying behavioural or targeted advertising. Please
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