Subcommittee on Guarantee of Fundamental Human Rights (Third Meeting)

Thursday, May 15, 2003

Meeting Agenda

Matters concerning the guarantee of fundamental human rights (right to know, right of access, right to privacy--including legislation concerning information disclosure and protection of personal information).

After a statement was heard from Dr. HORIBE Masao concerning the above matters, questions were put to him.

Informant:

  • HORIBE Masao, Professor of Chuo University, Faculty of Law

Members who put questions to Dr. HORIBE:

Main points of Dr. HORIBE's statement

Introduction

>> For more than 40 years, I have been involved in research concerning the right to know and the right to privacy, and have participated in developing various systems on the national and local levels. I have also participated in international discussions and have served on a working party of an OECD committee. My statement is based on these experiences.

1. Discussions of the right to know and information disclosure in Japan and the world

>> The development of discussions of the right to know and information disclosure in Japan can be divided into the following five periods.

[1]Recognition of the right to know and advocacy of system-building (late 1940s - early 1970s). The "right to know " was recognized relatively quickly after the adoption of the Constitution, but discussions in Japan were affected by the enactment of the Freedom of Information Act in the United States in 1966. Supreme Court decisions from this period begin to refer to the "freedom to know " and the role of the "media to serve the people's right to know."

[2] Advocacy and establishment of information disclosure systems (late 1970s - 1980 and thereafter). Public interest in information disclosure mounted in the second half of the 1970s as a result of Japan's Lockheed scandals. People began to actively advocate the establishment of disclosure and access systems. Local governments were the first to move toward creating such systems.

[3]Launching of local government information disclosure systems and study of information disclosure legislation (first half of 1980s and thereafter). In 1983, Kanagawa Prefecture enacted its Ordinance Concerning the Disclosure of Public Documents, marking the start of the operation of local government information disclosure systems. On the national level, in 1995 the Administrative Reform Council began its study of pertinent legislation.

[4] Publication of a summary draft of a Bill on Access to Information Held by Administrative Organs and review of local government information disclosure and access systems (1996 and thereafter). In 1996, the summary draft of the Bill on Access to Information Held by Administrative Organs (interim report) was released, leading to action toward enactment of the bill. At the same time, local governments engaged in reviewing the operation of their information disclosure systems.

[5]Application of the Access to Information Held by Administrative Organs (2001 and thereafter). It was enacted in May 1999 and came into force in April 2001.

2. Discussions of privacy and protection of personal information in Japan and the world

>> The development of discussions of privacy and the protection of personal information in Japan can be divided into the following four periods.

[1]Recognition of the right to privacy and advocacy of system-building (1950s - mid-1970s). During the 1950s, an active discussion was started in American academic circles on how to respond to the invasion of privacy by the media. A paper was published at this time which defined the right to privacy as the "right to be left alone." In Japan, the Tokyo District Court, ruling on the so-called "after the banquet" case in 1964, recognized the right to privacy as the "legal guarantee or right that one's private life shall not be indiscriminately made public." In connection with computers, the right to privacy began to be viewed in the United States during the 1960s as the "individual's right to control the flow of information concerning himself" (the right to control personal information.)

[2]Advocacy and enactment of privacy laws (mid-1970s - 1980 and thereafter). Discussion of this issue became increasingly heated in Europe and the United States during the 1970s. Responding to this development, local governments in Japan began to enact ordinances concerning privacy. In 1980, the OECD adopted its Privacy Guidelines.

[3]Study of legislation concerning protection of personal information held by administrative organs, formulation of Personal Information Protection Guidelines, enactment of Law Concerning Protection of Personal Information Held by Prefectural Governments (mid-1980s and thereafter). Responding to the OECD recommendations, discussion of this matter was launched in government circles, leading to the enactment in 1988 of the so-called Act for Protection of Computer-Processed Personal Data Held by Administrative Organs. A supplementary resolution was appended to this law whereby the private sector was urged to "promptly consider" measures for the protection of personal information. Similarly, government agencies and others engaged in formulating related guidelines.

[4]Discussion of the draft of the Bill Concerning Protection of Personal Information (1999 and thereafter). In 1999, the Basic Resident Register Law was revised, at which time the debate in the Diet focused on the need to protect personal information. At this time, the government undertook to study legislation for the protection of personal information that would also encompass the private sector, leading to the publication of an interim report and basic principles. This culminated in the bill concerning the protection of personal information that is currently being deliberated upon in the House of Councillors.

3. Right of access, right to know, right to privacy in Japan and the world

>> The term "access" was used in the Code of Access to Government Information of the United Kingdom and has also been used in English translations of related legislation from throughout the world. Judging from the legal use of this term, the right of access can be viewed as an integral set of rights of citizens concerning information and its use, including the right to know and the right to control personal information.

>> In Japan, while the right of access has been discussed since the 1970s, it is still essentially understood to represent the rights of the individual against invasion by the mass media, and has not developed to the stage where it is interpreted to constitute a component of an integral set of rights.

>> The right of access is a concept that is being discussed on an international scale and should be further examined and debated in the future.

Main points of questions and comments to Dr. HORIBE

KURATA Masatoshi (Liberal Democratic Party)

>> The bipolar structure of the State and the people has developed into a tri-polar structure consisting of the State, the people and the media. In light of this development, I believe the claim of the right of access against the mass media should include the right to control one's personal information. What is your position on this matter?

>> I can understand why the provisions of laws for the protection of personal information do not apply to the mass media in the interest of preserving the freedom of the press. On the other hand, we see weak individuals pitted against enormously powerful mass media. In light of this relation, I believe there is a need to protect the individual from the mass media. What is your opinion?

>> I can understand why self-regulation by the mass media is desirable from the perspective of protecting the freedom of expression. What do you think of the idea of mandating the creation of a statutory agency for self-regulation of the mass media?


KOBAYASHI Kenji (Democratic Party of Japan and Club of Independents)

>> The Law Concerning Access to Information Held by Administrative Organs contains provisions for the review of the law four years after enactment. After two years of enactment, I believe the following points present themselves for review: expanding the scope of legal action for information disclosure and access, and explicit reference to the right to know. In your opinion, what are the points that require review?

>> The bill concerning the protection of personal information which is currently being deliberated upon should not be enacted as a comprehensive law. Instead, I believe we should have a series of specific laws which separately cover the public and private sectors, as well as various segments of the private sector. What is your view?

>> We have seen that the Defense Agency has sought the "delivery" of personal information concerning prospective recruits from local governments, and that local governments have obliged. Does this not transgress the bounds of "viewing" as provided in the Basic Resident Register Law?


OTA Akihiro (New Komeito)

>> The right to privacy is derived from the interpretation of Article 13. In this information age, don't the provisions of Article 21 also provide constitutional grounds? Some are of the opinion that new constitutional provisions are needed for new types of human rights only when the Constitution does not contain provisions that can be substituted for this purpose. But from the perspective of the Constitution's role in indicating the country's direction as the "people's Constitution," the "human rights Constitution" and the "environmental Constitution," would it not be better to append some form of explicit provision to the Constitution?

>> Regarding the protection of the people from the mass media, I do appreciate that progress is being made in the self-regulation of the mass media. However, should we not consider a system like that of the United States that allows for claims of punitive damages?


TAKEYAMA Yuriko (Liberal Party)

>> Six years ago when I visited Norway I was very surprised by how advanced that country was in the area of information access and disclosure. My question is: From the perspective of foreign countries, how advanced is Japan in this area?

>> Regarding the application of laws concerning information access and disclosure and the protection of personal information, I believe that it is very important to start with raising the consciousness of the people. I believe that the level of consciousness in Japan is far lower than that in Europe and the United States in such areas as the sequestering of information by government administration and the abuse of personal information by the mass media. What is your view on this matter?


HARUNA Naoaki (Japanese Communist Party)

>> Regarding discussions of the right to know, the right of access and privacy rights, it has been said that Japan lags 20 to 30 years behind Europe and the United States. Why do you think this lag has come about?

>> Some argue that the Constitution should be amended to include explicit provisions for the right to know and the right of access. But this is unnecessary in my view. We have lived the fifty-year history of the Constitution without explicit provisions. Instead these rights have become firmly established under the provisions of Article 13 concerning respect for the individual and the right to the pursuit of happiness as a result of popular movements, global developments and trends, the efforts of scholars, the accumulation of court rulings and the efforts of a wide range of other people. What is needed now is to enact specific laws to guarantee these rights. What is your opinion on this matter?

>> When enacting legislation for the protection of personal information, I believe the global trend has been to create a third-party agency independent from the government for preserving the freedom of the press while also protecting personal information. What is your view on this matter?


KITAGAWA Renko (Social Democratic Party)

>> How do the Japanese systems of assigning identification numbers to individuals, such as the resident registration code, and the Basic Residential Register Network System, measure up against global developments?

>> The Local Authorities Systems Development Center which is to manage the resident registration codes has been established as a public organization and will be exempt from the provisions of the bills being currently deliberated upon, such as the Bill for the Protection of Personal Information Held by Administrative Organs and the Bill for the Protection of Personal Information Held by Independent Administrative Institutions. What is your view on this matter?

>> The Law Concerning Access to Information Held by Administrative Organs does not contain explicit provisions for the "right to know." What is your evaluation of this point two years after the law came into force?


TANIMOTO Tatsuya (Liberal Democratic Party)

>> The mass media has come to possess the greatest power in contemporary society. In light of this fact, I cannot help but feel uncomfortable about leaving everything to self-regulation. As you explained, Article 21 provides for the freedom of expression, and I am aware of the view that statutory regulations would be difficult to institute. However, if we are to rely wholly on self-regulation, even if the Constitution were to be revised to include explicit provisions for the right to privacy, the right to know and the right of access, I am afraid that these rights could be rendered meaningless in connection with the freedom of the press. In your opinion, what directions are desirable in achieving a balance between the right to privacy and the freedom of expression?

>> Even when the courts rule against the mass media for invasion of privacy, the penalties imposed are light and compensation amounts low. Consequently, the media may go ahead and publish something with the clear expectation and readiness to pay compensation. I believe heavier penalties should be instituted to prevent such instances. What is your view?


KONNO Azuma (Democratic Party of Japan and Club of Independents)

>> The government argues that the concept of the right to control one's own personal information has not become adequately established. However, in Europe and the United States, which are advanced in the area of the protection of personal information, we find explicit provisions in laws guaranteeing rights that correspond to the right to control personal information. In light of this fact, I believe that the concept of the right to control personal information has in fact become fully established. What is your view on this matter?

>> I believe it is very important to review systems created by the government after some experience has been gained in the application and management of the system. Regarding the Law Concerning the Protection of Personal Information, I think it will become necessary to review and reconsider such questions as the unintended use of accessed information, use of information by third parties and the handling of sensitive information in light of the actual application of the law. As such, I believe the inclusion of "review clauses" is necessary. What is your position on the need to include an explicit "review clause" in this law?


NAGASE Jinen (Liberal Democratic Party)

>> The Asahi Shimbun revealed the Pyongyang address of the husband of SOGA Hitomi, the returned abductee from North Korea, without her consent. In your view, what can be done to protect the people from such damage which is virtually unrecoverable and cannot be rectified?

>> The idea that the mass media is focused on the fair and neutral coverage of the truth without consideration of profit is now nothing more than a myth and a falsehood. I believe the time has come to consider a legal framework that will protect the freedom and rights of the people. What is your position on this matter?

>> Is there some viable method for eliminating the evils resulting from the protection of the freedom of the press? I believe the position of the mass media in the legal framework should be reviewed. What is your view on this matter?


INOUE Kiichi (New Conservative Party)

>> I would like to ask you to present us with the standard academic view of what constitutes the specific content of the "right to know" and the "right to privacy."

>> The Asahi Shimbun released the detailed address of the sender of a letter addressed to SOGA Hitomi without her consent. This is not a problem that can be swept away by merely stating that it shows a lack of proper consideration for privacy. I feel our present systems are inadequate for ensuring fairness of the press and for preventing the infringement of privacy. If you believe that the present systems are inadequate, what do you think should be done?

>> Are there any countries with laws defining the infringement of privacy as a criminal offense?


Main points of comments made by Members during free discussion (In order of presentation)

HARUNA Naoaki (Japanese Communist Party)

>> Information gathered in the process of the exercise of the people's right to know must be treated differently from information gathered by the government for administrative reasons and information gathered by the private sector for business purposes. Furthermore, I would like to point out that extreme caution must be taken in applying any form of restriction on the freedom of expression which represents one of the most important rights provided for in the Constitution. Therefore, no legal restrictions should be placed on the mass media whose mission is to serve the exercise of the people's right to know, and self-regulation should be the principal approach. From this perspective, it is extremely problematic that the Bill Concerning the Protection of Personal Information (government draft) leaves room for state ministers with primary jurisdiction to restrict and regulate the mass media based on discretionary judgments.

>> The right to know, the right to access and the right to privacy have become established as constitutionally guaranteed human rights as a result of popular movements, the accumulation of court rulings and the efforts made by scholars and others. I would like to again point out that what is important now is to make efforts to enact laws which specifically guarantee these rights.


KONNO Azuma (Democratic Party of Japan and Club of Independents)

>> The Bill Concerning the Protection of Personal Information (government draft) does not contain a "review clause." At the time of enactment, there is no such thing as a perfect law. To clarify our attitude of earnest and unequivocal commitment to the process of repeated and continuous review, I believe the inclusion of a "review clause" is indispensable.

>> It can be said that the mass media today has lost sight of its high aspirations as a news reporting institution. But this must not provide an excuse for public authority to check and regulate the mass media. In this context, I think it is important to have an third-party agency charged with the task of protecting and coordinating the right of privacy. However, such an agency must not be created within government ministries.


HIRABAYASHI Kozo (Liberal Democratic Party)

>> With regard to the right to know, the right to access, and the right to privacy, the exercise of these rights must be based squarely on the people's awareness that freedom comes accompanied by responsibilities and that rights are coupled with obligations. In particular, persons involved in the handling of such rights must have a very clear awareness of this matter. While I do not necessarily believe that these rights must be explicitly provided for in the Constitution, I do firmly believe that in the absence of this awareness we cannot ensure the sound development of democratic politics in Japan.

>> Private broadcasting companies have voluntarily created an industry-wide third-party agency. I believe the creation of a similar agency for the newspaper industry should be discussed.


KITAGAWA Renko (Social Democratic Party)

>> I was greatly encouraged to learn that during the deliberations of the Law Concerning Access to Information Held by Administrative Organs, Dr. HORIBE advocated in the sub-committee hearings the need to make explicit provisions for the right to know.

>> The Bill Concerning the Protection of Personal Information (government draft) attempts to define what constitutes the press. This gives rise to the root of future calamity of a truly historical scale. I will continue to resolutely oppose any legislative attempt to control the mass media and any attempt to encourage self-regulation of the mass media by creating an atmosphere which allows for the control of free speech and expression.


KURATA Masatoshi (Liberal Democratic Party)

>> Today the mass media have become too big and powerful. As a result, citizens are in a position to be victimized by the media. From this perspective, I believe that Mr. KONNO's proposal for the creation of a third-party agency merits close study.


NAKAYAMA Taro, Chairman of the Commission

>> The Northern European countries which lead the world in information disclosure and access systems use social security numbers to process and manage a wide range of information. At the same time, these countries have created ombudsman systems to function as third-party agencies for the protection of individual rights. While Japan does not have an ombudsman system, such a system is clearly worth considering in the future as a means of ensuring the right to know, the right to access and the right to privacy.