Personal Information Protection Bill Allowing for Discrimination in Freedom of Expression

Fellow, RIETI

A bill to protect personal information, after being abandoned in the last extraordinary Diet session, has been reworked and will be again submitted for deliberations during the current regular session of the Diet. For nearly two years, since its first submission to the Diet, the bill has been the subject of controversy. According to recent media reports, the bill has been rewritten in such a way as to exempt news organizations entirely from restrictions under the proposed legislation, a move made in consideration of fierce opposition from members of the press who had criticized the original bill as a governmental attempt to restrict the media. On the other hand, operators of Internet sites and databases would be subject to all of the restrictions. It is suspected that the bill, which would privilege news organizations and discriminate against others in terms of freedom of expression, violates the principle of equality under the law as stipulated by the Constitution.

A Watered-Down and Toothless Bill

Debates on the bill were wrong-footed from the very beginning. When the bill was first submitted to the regular Diet session of 2001, debates should have centered on what kinds of personal information should be protected and what special consideration should be given to freedom of expression. In reality, however, the Japan Newspaper Publishers & Editors Association issued a written statement that called for exempting news organizations entirely from restrictions under the proposed legislation. Meanwhile, the Yomiuri Shimbun, a major daily newspaper, came up with its own version of a revised personal information protection bill that would also exempt news organizations from the restrictions. Then, publishing companies and free-lance journalists followed suit, demanding that they, too, be exempt. As such, debates have been entirely focused on which sectors and industries to exclude, at the expense of issues of essential significance.

The personal information protection bill, in its original version, was to regulate database operators and not to restrict the media. The original bill was comprised of two sections. The first half sets out five basic principles such as the proposition that personal information must be collected in an appropriate manner and that "appropriate involvement of an individual as data subject" should be sought in collecting his or her personal information. Then the latter half specifies restrictions and penalties, from which the media had been exempt. No similar laws in other countries exempt the media to such an extent. Still, the Japan Newspaper Publishers & Editors Association demanded that news organizations be excluded entirely from the proposed law, rejecting its basic principles, including the one calling for "collecting personal information in an appropriate manner."

Consequently, on top of news organizations, research institutions, religious groups, and political organizations, "writers" have been added as another group exempt from obligations, while the basic principles were eliminated and have been replaced by a very abstract "basic philosophy" that calls for "respect for individual personality." The basic principles, which had been decided in line with the international guidelines set forth by the Organization for Economic Cooperation and Development, were to form the backbone of the proposed legislation. With that backbone gone, the bill no longer holds its shape as a fundamental law. The egotism of the newspaper industry has made the bill toothless.

In the Internet Era, Freedom of Expression is a Matter of Concern for All

On the other hand, all industries other than the above-mentioned five would be placed under the control of a state minister in their respective jurisdictions and would be unable to provide personal information without obtaining consent from the data subject. The legislation would have a particularly significant impact on the Internet. The World Wide Web (WWW) is the world's largest distributed database and the bill, if enacted, would make almost all corporate websites (more specifically, those holding personal information concerning 5,000 individuals or more) subject to restrictions. Search engines would become unable to provide search results about individuals without their consent. Likewise, map service sites would not be able to include the names of buildings. In particular, the operation of electronic bulletin boards such as "Nichanneru (2ch)" would become extremely difficult, flooded with requests from a number of individuals demanding the elimination of personal information about them.

In its written statement, the Japan Newspaper Publishers & Editors Association expressed concerns that news-gathering activities may be subject to undue intervention in the name of "ensuring transparency." But news organizations are not alone in having such concerns. Do they mean to say that it is all right for corporate and individual websites to be subject to "undue intervention?" Surprisingly, that is what the Japan Newspaper Publishers & Editors Association asserts. In its statement, the association says: "The government's outline (of the proposed personal information protection law) fails to give sufficient recognition to the freedom of the press as apparent from the way it treats 'legitimate business activities' and media activities on the same level." Since when have the news organizations become a privileged class that is not on the "same level" as businesses in general?

All campaigns to date against "restrictions on the media," for which major news organizations have mobilized various media campaigns, have misguided the overall debate on the proposed law. At the same time, however, opposition parties, which took advantage of such moves by the media to muddle Diet debates, also bear the burden of blame. In the age of the Internet, freedom of expression is not the exclusive right of news organizations. Instead, it must apply equally to homepages, databases, and computer programs. Diet debates on the personal information protection bill must be brought back to the starting point and re-examined as an issue that concerns not only the media, but all people. On Feb. 5, RIETI held a policy symposium entitled "e-Government for Whom?" in which these issues discussed in this column were one of the topics. A video stream of the symposium is available on the RIETI website. (Japanese only)

January 28, 2003

January 28, 2003