JAPAN Trends and Developments Contributed by: Yuki Kuroda, Takahiro Nakayama, Takuya Uehara and Nanoko Sasaki, Oh-Ebashi LPC & Partners
• PPC enforcement measures: (a) the requiring of reports and on-site inspections (Article 146); (b) guidance and advice (Article 147); and (c) recommendations and orders, and the publication of non-compliance with orders (Article 148). • Criminal penalties: (a) failure to comply with the PPC’s report requirement or on-site inspections, or the submission of false reports: a fine of up to JPY500,000(Article 182); (b) violation of PPC orders: imprisonment for up to one year or a fine of up to JPY1 mil - lion (Article 178); and (c) a business (the term “Business handling personal information” is used in the APPI, but in this chapter, it will be referred to as “business” for the sake of simplicity) or its employee providing or misappropriating personal data processed in the course of business for unlawful personal or third- party gain: imprisonment for up to one year or a fine of up to JPY500,000 (Article 179). Criminal penalty provisions are subject to dual liability. Specifically, when an employee commits a violation under Article 178 or 179 in connec - tion with the business’s operation, the business may be subject to a fine of up to JPY100 million; when an employee commits a violation under Article 182, the business may be subject to a fine of up to JPY500,000 (Article 184). According to the PPC reports on enforcement activities, several hundred cases of guidance and advice are issued annually, with several dozen of these cases being publicly disclosed by the PPC, including disclosure of the relevant business names. While recommendations are limited to a few cases per year, all such cases
are made public, and there are instances where they have been issued to major companies. No orders have yet been issued against businesses conducting normal business activities. Regarding criminal penalties, there have been cases resulting in convictions, particularly in instances where employees misappropriated and sold personal data. However, no criminal penalties have yet been imposed on businesses. In light of these circumstances, concerns have been raised about the APPI’s deterrent effect. Furthermore, given that many other countries have implemented administrative monetary pen - alty systems, the appropriateness of introducing such a system in the APPI has been debated for several years. Introducing an administrative monetary penalty system Based on the background discussed above, the Study Group is considering introducing an administrative monetary penalty system into the APPI, which would require a balance to be struck between deterring violations while avoiding dis - couraging lawful activities. The Study Group is considering two categories of violations subject to administrative monetary penalties: • violations likely to lead to serious infringement of rights and interests; and • violations of security management measures. It will incorporate limitations based on the fol - lowing three elements to achieve the appropriate balance: • the violator’s subjective actions; • the degree of rights infringement; and • the scale of the violation.
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