JAPAN Law and Practice Contributed by: Hiromi Hayashi, Daisuke Tsuta, Masaki Yukawa and Keiichi Bando, Mori Hamada & Matsumoto
Machine Communications, Communications Secrecy and Data Protection ) was introduced in the wake of the Cyber Resilience Act in the EU. Since an emerging technology usually gives rise to new regulations and discussions in vari - ous jurisdictions, the legal framework surround - ing the TMT sector will be constantly changing. 7. Challenges with Technology Agreements 7.1 Legal Framework Challenges Technology Agreements There are no specific laws or regulations that apply to technology agreements, or that strictly regulate the location of data storage or data cen - tre, data-localisation, or price revision. However, the general contract law based on the will of the contracting parties applies to IT service agree - ments. Parties should remember the following when incorporating a liability limitation clause into a contract. • In a contract between a company and a consumer, a liability limitation clause may be invalidated under the Consumer Contract Act (CCA). • While the CCA does not apply to contracts between companies, a provision that exempts one contracting party from liability in the case of intentional or gross negligence may be invalidated under case law. Data Localisation There are no data localisation regulations. How - ever, for some sectors, such as the medical sec - tor, there are guidelines recommending storing data in locations where Japanese law applies, that is, Japan. These guidelines are not strictly
ance with the Interim Report. The revised guide - lines provide that, generally speaking, packet- shaping is in violation of the TBA, as it violates the secrecy of communications, which is pro - tected under the TBA; however, it may be per - mitted in exceptional situations, such as when general users are having difficulty in accessing a network due to heavy users’ traffic, or if a spe - cific application is excessively occupying the network. The revised guidelines also state that telecommunications operators should let users know, in the terms and conditions of service, of the possibility of packet-shaping and how and when it would occur. Further, the MIC published guidelines regarding zero-rating services in March 2020. These guide - lines provide examples of instances when zero- rating services would violate the TBA in terms of differentiating users without good reason, or the secrecy of communications, so that provid - ers of zero-rating services may avoid possible violations. While those guidelines are not legally binding, the working group established by the MIC con - tinuously monitors whether telecommunication service providers are handling packet-shaping and zero-rating services in accordance with those guidelines. 6.3 Emerging Technologies While the businesses in the TMT sector must comply with the laws that existed before the new technologies emerged (such as the RWA in terms of hardware and the TBA in terms of telecom services), they also need to watch new regulations and guidelines prepared by various regulators from time to time. Those new regula - tions or guidelines are often closely related to or inspired by regulations in other jurisdictions. For example, JC-STAR (see 4.1 Machine-to-
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