NHRC opinion on the Draft Bill for the Amendment of Laws Relating to the Protection of Private Information by Public Institutions
Having been asked by the Ministry of Government Administration and Home Affairs to submit an opinion on a bill on 10 November 2003, the National Human Rights Commission (NHRC) expressed the opinion that the “draft bill for the amendment of laws relating to the protection of private information by public institutions” (hereafter, draft bill) was inadequate to actually guaranteeing privacy rights, and thus, demanded that an better bill be drafted.
Although the draft bill does explicitly state that activities should adhere to the principle of protecting personal information with regard to gathering, using and providing personal information on individuals, the bill also recognizes exceptions that run contrary to the principle that information cannot be gathered on political thought and beliefs, as well as the principle that the government must be the agent directly collecting the information insofar as the draft bill allows others to be collecting the information in cases where the government gives its consent to that organization or where other laws stipulate that personal information should be collected on persons in specific groups or categories. Even where the draft bill prohibits collection of personal information, in cases where another law, under its jurisdiction of activities, cannot be carried out unless personal information on individuals is collected, this becomes an exception to the principle of direct information gathering by the government. Thus, the NHRC is concerned that such exceptions retained or newly created in the draft bill would undermine the principle of protecting the privacy of personal information.
In particular, with respect to the scope of application of privacy protections, the NHRC found that since the draft bill makes an exception for gathering and providing personal information for national security and related purposes and excludes from the scope of protection those persons whose personal information would be gathered, provided and analyzed for security purposes, that there was margin for arbitrary interpretation of the law by state agencies as well as the possibility that individuals’ rights would be violated.
The NHRC opinion, submitted to the Ministry of Government Administration and Home Affairs, made the following recommendations: (1) that an independent organ for protecting the privacy of personal information be established in line with internationally-recognized standards (OECD-UN Guidelines, EU Directive) and similar to such laws abroad as in Australia, Canada, France, and Germany; (2) when there is a move to set up a database of personal information or make changes thereof, that this independent organ must first be consulted; (3) that cases dealing with violations to the privacy of personal information be handled by this independent organ; and (4) this independent organ would have powers to review and make decisions on items relating to policy and institutional reform relating to protecting the privacy of personal information such that in an information society, personal information and one’s private life can be kept private to ensure freedom and the pursuit of happiness.
