This column provides a brief overview of the notification requirement under the Telecommunications Business Act of Japan (the “TBA”) that providers of web- or app-based services for Japanese users should be aware of.
1. Notification Requirement
(1) General
Under the TBA, a person who provides a service that mediates the communications of others using telecommunications equipment is, in principle, required to submit a notification (and in certain cases, obtain registration) to the Ministry of Internal Affairs and Communications of Japan (“MIC”),.
A typical example of a service that “mediates the communications of others” is an email or chat service, where one person (the sender) transmits a message to another person (the recipient) via the service.
“Telecommunications equipment” broadly includes machines, instruments, lines, and other electrical facilities used for telecommunications. For example, servers used to provide online services fall within this definition. Ownership of such equipment is not required; therefore, most online services satisfy this element.
Accordingly, the key issue is whether the relevant service constitutes mediation of the communications of others. If it does, the notification requirement is triggered.
In addition, if a service provider installs telecommunications line facilities—that is, transmission line facilities connecting sending and receiving locations, together with associated exchange equipment and ancillary facilities—the more stringent registration requirement may apply. This typically applies to telecommunications carriers. Providers of web- or app-based services rarely install such facilities, and therefore are generally not subject to the registration requirement.
(2) Mediation of the Communications of Others
The central question is whether a service constitutes “mediation of the communications of others.”
According to the Telecommunications Business Entry Manual published by MIC, this concept refers to transmitting or exchanging information, relaying communications between parties, and completing such communications, based on the request of another person and without altering its content.
“Without altering its content” means that the essential substance of the information is not modified. Superficial or technical changes—such as format conversion, media conversion, or the addition of transmission-related information (e.g., email headers)—do not constitute alteration.
For online services, where the content is not altered or edited, and the recipient is specified by the sender, the service will be considered to constitute mediation of the communications of others.
By contrast, if the service provider reviews the content and determines whether it should be delivered, such involvement may constitute alteration or editing, and the service may fall outside the scope of “mediation.”
Examples of services that mediate the communications of others include:
– Services enabling message exchanges between specific users via text, voice, images, or video (e.g., messaging applications or business chat tools), including direct messaging functions embedded in other services such as matching services or online games
– Webinar or web meeting systems where participation is limited to specified users (e.g., person specified by the host)
Examples of services that generally do not mediate the communications of others include:
– Services that provide a “space” for an unspecified number of users to post and view content (e.g., social network service, bulletin board or video sharing service), unless (i) the number of registered active users exceeds 10 million, or (ii) a direct messaging function is provided
– Webinar systems accessible to anyone with a URL, unless the number of registered active users exceeds 10 million
(3) Provision of Services from Outside Japan
Even where a service provider is a foreign entity and the service is provided from outside Japan, the notification requirement may still apply if it is clear that the provider intends to offer the service to users in Japan.
Such intent may be inferred, for example, where:
– the service is offered in Japanese;
– fees can be paid in Japanese yen; or
– advertising or promotional activities targeting usage in Japan are conducted.
(4) Procedure
Where the notification requirement is triggered, the service provider must submit the required documentation prior to commencing the relevant business.
In the case of a foreign entity, MIC recommends to conduct prior consultation, and is required to appoint a representative in Japan.
In addition, certain changes to notified matters will require the submission of an amendment notification.
2. Obligations as a Telecommunications Business Operator
(1) Protection of the Secrecy of Communications (Article 4 of the TBA)
(i) Provision in TBA
Article 4 of the Telecommunications Business Act (the “TBA”) provides as follows:
– Paragraph 1: The secrecy of communications handled by a telecommunications business operator must not be violated.
– Paragraph 2: Persons engaged in the telecommunications business must keep confidential any secrets of others that they learn in connection with handling communications during their employment. This obligation continues even after they leave their position.
A breach of this obligation is subject to criminal penalties, including imprisonment of up to three years or a fine of up to JPY 2 million (Article 179, Para 2 of TBA). For persons not engaged in the telecommunications business, the penalty is imprisonment of up to two years or a fine of up to JPY 1 million (Article 179, Para 1 of TBA).
In addition, any leakage of the secrecy of communications must be reported without delay to the MIC (Article 28, Paragraph 1, Item 2 of the TBA).
(ii) Scope of “Secrecy of Communications”
The “secrecy of communications” covers not only the content of communications handled by a telecommunications business operator, but also all information relating to individual communications, including:
– date and time;
– location;
– information identifying the sender or recipient (e.g., name, address, telephone number); and
– the mere existence of the communication.
In other words, any information that can be linked to a specific communication is protected. Further, this protection applies regardless of whether the parties to communication are individuals or legal entities.
By contrast, customer information that is not linked to specific communications (such as a registered user’s name or address) does not fall within the scope of the secrecy of communications.
(iii) Acts Constituting a Breach
Typical acts constituting a breach of the secrecy of communications include:
– acquiring (i.e., becoming aware of) the secret of communications;
– leaking secret of communication to third parties; or
– using secret of communication in a manner contrary to the intent of the parties to the communication.
It is important to note that mere acquisition of the information concerning communications by the telecommunications service provider itself will constitute a violation.
Moreover, these violations are not limited to human actions. For example, automated systems that detect communications meeting certain conditions and use such information in a manner contrary to the users’ intent will also constitute a breach.
(iv) Exceptions
Certain exceptions are recognized, and we will briefly explain about some of key exceptions.
The first one is user’s consent. Use of the secrecy of communications is permissible where the user has given specific and clear consent. General consent through standard terms and conditions is, in principle, insufficient.
However, where ordinary users would reasonably expect and accept such processing (e.g., spam or malware filtering) and users are given an opportunity to opt out, more comprehensive consent may be permissible.
Also, justifiable business acts, satisfying all of justifiability in purpose, necessity and proportionality will constitute exception.) Examples include minimum recording, checking or delivering the communication record, for billing and fee calculation, responding to complaints, preventing abuse; and maintaining the security and stability of systems.
(2) Prohibition of Unjust Discriminatory Treatment (Article 6 of the TBA)
Article 6 of the TBA prohibits telecommunications business operators from engaging in unjust discriminatory treatment in the provision of telecommunications services. Typical examples are discrimination based on factors such as nationality, race, gender, age, social status, occupation, or financial status.
Disclaimer: This column intends to provide a high-level summary of the subject matter, and it does not aim to provide exhaustive information. Also, this column is for informational purposes only and does not constitute legal advice. For specific issues, we recommend consulting an expert. If you have any query, please contact us via inquiry form in this homepage.