Japan: EU Adequacy Discounted
(2018) 155 Privacy Laws & Business International Report 8-10
5 Pages Posted: 26 Nov 2018 Last revised: 1 Feb 2019
Date Written: October 1, 2018
The European Commission issued its draft Decision on the adequacy of Japan's data protection law in September 2018. This article argues that the draft Decision, in relation to the private sector, does not contain sufficient justification that Japan meets the EU’s criteria for adequacy, described in the Decision as requiring that Japan “guarantees a level of protection ‘essentially equivalent’ to that ensured” within the EU.
Seven areas of insufficient justification are examined: (i) How is Japan’s enforcement regime ‘essentially equivalent’ to the EU? (ii) Is consent a sufficient basis for an onward transfer regime? (iii) Can an “essentially equivalent” law exclude Japanese citizens from its protections? (iv) Is there a loophole for “readily collated” personal information? (v) ‘Sectoral’ exclusions from PPIA are exensive, but do they have parallels in the GDPR? (vi) Reliability of translations of key documents. (vii) The extent of other gaps between Japanese and EU laws, including requirements for data protection by design and by default; data portability; mandatory DPIAs; mandatory DPOs; and de-linking (“right to be forgotten”);and very weak protections in relation to automated decision-making and data breach notification.
The article considers -- if the draft Japanese Decision was adopted “as is” -- what conclusions might be drawn by some governments in other countries that are planning to amend or enact data privacy laws with adequacy in mind? If others say "We will have what Japan is having?", what are the consequences for the future of adequacy? This requires all EU institutions to consider some fundamental questions about the meaning of both adequacy and “essentially equivalent”, in the course of improving or rejecting this draft Decision.
Keywords: Data Protection, Privacy, Japan, European Union, Adequacy, Essentially Equivalent, GDPR
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