JAPAN Law and Practice Contributed by: Hiroaki Matsui, Yukitsuna Takekoshi, Mari Ueki and Satoru Makino, AI-EI Law Firm
7. Data Protection 7.1 Collecting Personal Data
use of AI needs to comply with the company’s inter - nal investigation rules, information management poli - cies, data protection policies and other relevant inter - nal regulations. In addition, to prevent the leakage of confidential information, it is necessary to implement security measures, such as using a closed-environ - ment AI or configuring the AI to preclude learning from the input data.
An employer may collect personal data for the pur - pose of an HR internal investigation. However, as the investigation will conflict with the protection of pri - vacy, the employer should consider the balance and proportionality between the necessity and the extent of collecting the information. In addition, special care- required personal information – which includes race, trust, social status, medical records, crime records and victim records – is strongly protected under the Act on the Protection of Personal Information (Article 2, paragraph 3) and the acquisition of such informa - tion is prohibited without consent, with a few excep - tions. 7.2 Specific Rules An employer should act in accordance with the Act on the Protection of Personal Information, as mentioned in 7.1 Collecting Personal Data . In addition, the inves - tigation team should follow the Work Rules and inter - nal rules on the protection of personal information. 7.3 Access The owner of the personal data has the right to access and correct the personal data collected in the course of an HR internal investigation (Article 34 of the Act on the Protection of Personal Information). However, this right cannot be used to change the results of the fact-finding or the investigation report. 7.4 AI AI serves as a supplementary tool in conducting inter - nal investigations. For example, AI is utilised to con - duct digital forensics on data held by the respondent, such as extracting, organising and rapidly reviewing large volumes of emails and documents. AI is also used to transcribe audio recordings from interviews conducted with the respondent and relevant parties. On the other hand, factual findings and legal assess - ments continue to be made by the investigation team (lawyers). Even when AI is used in internal investigations, the handling of employees’ personal data requires appro - priate protection and consideration for privacy, as described in 7.1 Collecting Personal Data , and the
8. Special Cases 8.1 Whistle-Blowing
The Whistle-Blower Protection Act contains detailed provisions for the protection of whistle-blowers. The subject of the protection is a whistle-blower who is an employee, a former employee who retired from the employer within one year, or a business partner and their employees and officials (Article 2, paragraph 1). The subject of the whistle-blower’s report is a viola - tion of the laws concerning the protection of the life, body, property and other rights of the citizen, which involves criminal and/or unlawful conduct subject to criminal sanctions and fines; such laws (of which there are more than 500) are listed in the Whistle-Blower Protection Act (Article 2, paragraph 3). The desti - nation of the report is categorised into three types – namely, employers, authorities and other organisa - tions – and the requirements for protection differ for each type. Pursuant to the Whistle-Blower Protection Act, adverse treatment, retaliation, dismissal and any claim for damage against the whistle-blower based on the whistle-blower report are prohibited (Articles 3, 5, 6 and 7 of the Whistle-Blower Protection Act). 8.2 Sexual Harassment and/or Violence The employer should take preventative measures against sexual harassment (Article 11, paragraph 1 of Act No 113 of 1972 – the “Act on Equal Opportunity and Treatment Between Men and Women in Employ - ment”). If the employer fails to take appropriate meas - ures, it will be in violation of its duty of care, which exposes the employer to legal risks. Sexual harass - ment is defined as “acts in the workplace that cause an employee to suffer disadvantages in their working conditions or harm to their work environment due to sexual conduct, and the employee’s response to such sexual conduct” (Article 11, paragraph 1).
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