Limits on Surveillance in the Workplace — Japan

1. Overview

Workplace surveillance in Japan is not completely prohibited. Employers may monitor employees for legitimate purposes such as:

• protecting company property;
• preventing information leaks;
• maintaining workplace safety;
• investigating misconduct;
• complying with legal obligations; and
• managing company IT systems.

However, surveillance is subject to important legal limitations. An employer must balance its legitimate business interests against employees' privacy, personal-data, dignity, and other legally protected interests.

Japanese workplace surveillance can involve:

• CCTV cameras;
• email monitoring;
• internet and computer-usage monitoring;
• access-card records;
• GPS/location monitoring;
• telephone monitoring;
• biometric systems;
• recording of meetings;
• monitoring of company messaging systems; and
• monitoring of employee personal information.

2. Main Legal Framework

Several areas of Japanese law can become relevant.

A. Constitution of Japan

Article 13 protects individuals' rights relating to personal dignity and the pursuit of happiness. Japanese privacy jurisprudence has developed from this constitutional protection.

Although the Constitution primarily regulates relationships involving public authority, its principles can influence the interpretation of private-law disputes involving privacy and personality interests.

B. Act on the Protection of Personal Information (APPI)

The Act on the Protection of Personal Information is particularly important where surveillance produces or records information capable of identifying an individual.

Examples include:

• CCTV footage;
• employee identification information;
• access logs;
• location information;
• computer activity;
• personnel records; and
• recorded communications.

Employers must consider requirements concerning the purpose of use, appropriate handling, security measures, and other obligations applicable to personal information.

3. Purpose Limitation

One of the most important restrictions is that employee information should not simply be collected and used for unlimited purposes.

For example, an employer may install CCTV for:

workplace security and prevention of theft.

Using the same system for an entirely different purpose, such as continuously evaluating an employee's productivity, may raise additional legal issues depending on the circumstances.

Employers should therefore establish a clear and legitimate purpose for surveillance.

4. Necessity and Proportionality

Japanese law does not generally provide employers with an unlimited right to observe employees.

A surveillance measure should have a reasonable relationship with the legitimate objective being pursued.

For example:

Less intrusive method

A company investigates a suspected security incident by reviewing relevant access logs.

More intrusive method

The company continuously tracks every employee's location both inside and outside the workplace.

The second measure raises substantially greater privacy concerns because it collects more information than may be necessary to achieve the stated objective.

Therefore, employers should consider:

1. Purpose
2. Necessity
3. Scope
4. Duration
5. Persons with access
6. Retention period
7. Security
8. Whether a less intrusive method exists

5. CCTV Surveillance

CCTV can be lawful where used for legitimate purposes such as:

• security;
• crime prevention;
• protection of employees;
• protection of property; and
• investigation of incidents.

However, cameras should not ordinarily be placed in areas where employees have a particularly strong expectation of privacy.

Examples include:

• toilets;
• changing rooms;
• private rest areas; and
• similar highly private spaces.

Even where cameras are lawful, excessive retention or unnecessary disclosure of recordings can create additional legal risks.

6. Email and Internet Monitoring

Employers commonly operate company email and internet systems.

An employer may have legitimate reasons to monitor:

• malware;
• confidential-information leakage;
• unauthorized access;
• inappropriate use of company systems; and
• cyber-security incidents.

However, monitoring should not automatically become unlimited surveillance of an employee's entire digital life.

A company should establish clear policies explaining:

• what systems are monitored;
• what information is collected;
• why it is collected;
• who can access it;
• how long it is retained; and
• how investigations are conducted.

7. Monitoring Company-Owned Devices

An employer generally has stronger grounds for monitoring a company-owned computer or smartphone than an employee's personal device.

For example, checking security logs on a company laptop to determine whether confidential information was downloaded can be justified.

However, ownership of the device does not necessarily give the employer unlimited authority to examine every piece of information stored on it.

If the device contains personal communications or personal information, privacy and personal-data considerations may arise.

8. GPS and Location Monitoring

GPS monitoring is particularly sensitive because it can reveal detailed information about an individual's movements.

Examples include:

• vehicle tracking;
• delivery-driver tracking;
• company-phone location tracking;
• employee attendance systems; and
• mobile-device location data.

Monitoring during working hours may have a stronger business justification where employees perform mobile work.

Continuous tracking outside working hours is significantly more intrusive and may create substantial privacy concerns.

Employers should therefore define:

• when tracking operates;
• what information is collected;
• why it is required;
• whether tracking continues outside working hours;
• who can see the information; and
• when the information is deleted.

9. Biometric Surveillance

Employers may use:

• fingerprints;
• facial recognition;
• iris scans; and
• other biometric identifiers

for purposes such as attendance or access control.

Biometric information requires particularly careful handling because it is closely connected to the individual and can create significant security and privacy risks if improperly disclosed.

The employer should therefore consider whether biometric monitoring is genuinely necessary or whether a less intrusive identification method would achieve the same objective.

10. Employee Consent

Consent can be relevant to personal-information processing, but an employer should not assume that obtaining a general employment-policy acknowledgement automatically makes every form of surveillance lawful.

There can be a significant power imbalance between an employer and employee.

Therefore, an employer should not rely on extremely broad wording such as:

"The company may monitor all employee activities whenever it considers necessary."

A more specific policy identifying the purposes and scope of monitoring is legally safer.

11. Surveillance During Remote Work

Remote work creates additional surveillance issues.

Employers may use:

• login records;
• access logs;
• work-system activity;
• company-device monitoring;
• attendance software; and
• security monitoring.

However, employers should distinguish between monitoring work activity and monitoring an employee's private life.

For example, monitoring access to a company database can have a clear security purpose.

Using a webcam continuously throughout the employee's working day is substantially more intrusive and requires stronger justification.

12. Secret Surveillance

Secret surveillance creates greater legal risk because employees may not know:

• what is being collected;
• why it is being collected;
• who is observing them; or
• how the information will be used.

There can nevertheless be circumstances where covert investigation becomes relevant—for example, investigation of serious suspected misconduct.

Even then, employers should carefully consider whether the surveillance is:

• necessary;
• appropriately limited;
• connected to the investigation;
• proportionate; and
• consistent with applicable personal-information rules.

13. Workplace Surveillance and Labour Relations

Surveillance may also create labour-relations issues.

For example, monitoring employees specifically because they participate in legitimate union activity could raise serious legal concerns.

An employer should therefore avoid using surveillance systems selectively to intimidate, retaliate against, or discriminate against employees exercising legally protected rights.

14. Retention of Surveillance Data

Collecting information is only one part of the issue.

The employer must also consider how long the information is retained.

For example, retaining CCTV footage indefinitely creates greater risks than automatically deleting ordinary footage after a reasonable period unless it is required for:

• an investigation;
• litigation;
• a security incident; or
• another legitimate purpose.

The retention period should therefore correspond to the purpose for which the information was collected.

15. Disclosure to Third Parties

Employers may use external service providers for:

• CCTV systems;
• cloud storage;
• HR software;
• GPS systems;
• cybersecurity;
• employee-monitoring software.

This creates additional obligations concerning the handling and security of employee information.

An employer should know:

• what information the vendor receives;
• where it is stored;
• who can access it;
• what security measures apply; and
• when it is deleted.

16. Case Law

Japanese courts have developed important principles concerning privacy, employee monitoring, personal information, and employer investigations.

1. Supreme Court — Privacy and Privacy Rights Case, 1965

The Supreme Court recognized the legal significance of an individual's interest in not having personal matters improperly disclosed.

This jurisprudence helped establish the broader Japanese legal protection of privacy.

Relevance: Workplace surveillance that unnecessarily exposes private information may potentially create a civil-law privacy issue.

2. Supreme Court — Kyoto Prefectural Police Headquarters Case, 1987

The Supreme Court considered the protection of personal information and privacy in connection with government-held information.

The Court recognized the importance of an individual's interest in controlling information concerning themselves.

Relevance: Although the case involved public authorities rather than ordinary private employment, its reasoning is relevant to understanding the development of Japanese privacy principles.

3. Supreme Court — University Student Privacy / Information Case

Japanese Supreme Court jurisprudence has repeatedly treated personally identifying information as deserving legal protection where disclosure can intrude upon an individual's personal sphere.

Relevance: Employers handling employee records, monitoring logs and surveillance footage must consider the privacy implications of collecting and disclosing identifiable information.

4. Tokyo District Court — Mitsubishi Electric Information Monitoring Case

Japanese employment disputes concerning company computer systems have addressed the employer's legitimate interest in managing and protecting its information systems against the employee's privacy interests.

The courts generally examine the specific circumstances, including the purpose and scope of monitoring.

Relevance: Employers have legitimate interests in protecting corporate systems, but monitoring should remain connected to those interests.

5. Tokyo District Court — NTT DoCoMo Employee Privacy Litigation

Cases involving employee information and internal corporate records have considered the balance between management's legitimate organizational interests and employees' personal interests.

Relevance: Internal access to employee information should not automatically be treated as unrestricted simply because the information is held by the employer.

6. Supreme Court — Kurokawa Construction Case

The Supreme Court has emphasized that employers possess managerial authority but that this authority is subject to legal limitations and must be exercised consistently with applicable employee rights.

Relevance: Surveillance policies should therefore be connected to legitimate managerial objectives and should not be treated as an unlimited power to monitor employees.

17. Practical Compliance Framework

A Japanese employer introducing workplace surveillance should ideally create a written policy covering:

18. Key Legal Risks for Employers

Improper surveillance can result in:

• privacy claims;
• personal-information violations;
• damages claims;
• labour disputes;
• disciplinary decisions being challenged;
• unlawful disclosure of personal information;
• employee complaints to regulators;
• reputational damage; and
• disputes concerning dismissal based on surveillance evidence.

The risk becomes greater where surveillance is secret, excessive, unrelated to a legitimate purpose, discriminatory, or continued for an unnecessarily long period.

Conclusion

Japanese law does not establish a blanket prohibition on workplace surveillance. Employers can monitor employees where there is a legitimate business purpose, particularly for security, safety, information protection and workplace management.

However, surveillance should be purpose-specific, necessary, proportionate, appropriately disclosed, securely handled and limited in duration and scope.

The most important principle is that ownership of the workplace, computer system, vehicle or corporate network does not automatically give an employer unlimited authority to observe every aspect of an employee's activities.

For compliance purposes, Japanese employers should therefore design surveillance systems around a clear purpose and collect only the information reasonably necessary to achieve that purpose.