Comparative analysis on the protection of the personal data of the worker in the process of personnel management of the enterprise

1999 Fiscal Year Final Research Report Summary

• Project/Area Number: 10620048
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: Social law
• Research Institution: Kobe University
• Principal Investigator: HAMADA Fujio Kobe University, Faculty of Law, Professor, 法学部, 教授 (10030628)
• Co-Investigator(Kenkyū-buntansha): OUCHI Shinya Kobe University, Faculty of Law, Associate Professor, 法学部, 助教授 (10283855) ; KAGAWA Kozo Kobe University, Graduate School of International Cooperation Studies, Professor, 大学院・国際協力研究科, 教授 (20019087)
• Project Period (FY): 1998 – 1999
• Keywords: personal data / worker / ILO / EU directive / consent / sensitive data / privacy / workers' representative

Research Abstract

In 1998, we analyzed the legal systems of the other countries on the protection of workers' personal data. In particular, our research was concentrated on the code of conduct of ILO, EU directive, the new law recently adopted in Italy, the theoretical development in this matter in Germany. At the same time, we analyzed how the Japanese courts have decided the case in which a worker's privacy and personal data are at stake, or their right to privacy or on the personal data is violated.
In 1999, first of all we continued the research of the other countries' legal systems. We could derive the useful suggestion, as to the scope of data to be protected and what kind of legal measures have been devised, especially from the study of Italian and German legal system and the code of conduct of ILO, EU directive. Then we examined how and to what extent the workers' personal data can be protected under the civil law and the labor law which are actually applied in Japan.
We conclude from above-mentioned research that also in the Japanese law, it is necessary to define the personal data to be protected, especially sensitive data, and to require the consent of the workers and in some cases additionally the justified reason if the employer intends to collect, use or communicate etc. his or her personal data. And in order to protect fully the personal data of individual worker, the workers' representatives' assistance can and should play an important role, but under the actual Japanese law, we cannot expect much of the good function of the workers' representative in this area. Furthermore we conclude that it is necessary to prescribe the penal sanction sufficient to prevent from the employer's illegal processing of personal data of his workers, and to devise the legal system to facilitate the injunction in order to protect the worker's right.