A. Information relating to the fact that an individual is infected with the COVID-19 virus and his/her test results and health status, etc. (hereinafter referred to as “Infection Facts”) falls under the category of “Special care-required personal information” as defined in the Act on the Protection of Personal Information, which refers to certain types of personal information which need to be handled with special care so as not to cause unfair discrimination, prejudice or other disadvantages to the individual (Article 2, Paragraph 3 of the Act on the Protection of Personal Information; Article 2, Items 2 and 3 of the Order for Enforcement of the Act on the Protection of Personal Information; and Q & A 1 -25 of the Personal Information Committee). Therefore, in principle, it is necessary to obtain the prior consent of the individual concerned when acquiring such information (Paragraph 2, Article 17 of the Act on the Protection of Personal Information).

In cases where an employer is able to acquire information relating to Infection Facts directly from an individual, the individual can be deemed to have consented to the acquisition because the individual had directly provided the information to the employer (Guidelines of the Personal Information Protection Commission (Part I: General Rules) 3 -2 -2 * 2).

Even in cases where it is not possible to acquire information relating to Infection Facts directly from an individual, it may be possible for an employer to acquire such information even without the individual’s prior consent under the following two exceptions: (1) cases in which there is a need to protect a human life, body or fortune, and when it is difficult to obtain the individual’s consent (Article 17, Paragraph 2, Item 2 of the Act on the Protection of Personal Information), and (2) cases in which there is a special need to enhance public hygiene or promote fostering healthy children, and when it is difficult to obtain a principal's consent (Article 17, Paragraph 2, Item 3 of the Act on the Protection of Personal Information).

For example, if an individual is hospitalized and it is difficult to obtain consent from the individual, an enquiry may be made to the individual’s family.

In addition, with regard to the handling of health information on employees, the "Points to Note Regarding the Handling of Health Information Among Personal Information in the Employment Management Field" (May 29, 2017: Nichijo No. 749, Kihatsu No. 0529 No. 3) (hereinafter referred to as "Points to Note") states that in principle, information on infectious diseases with low infectivity should not be acquired from employees, etc (3-8(3) of the Points to Note). However, since it is clear that the COVID-19 virus is highly contagious, the acquisition of information relating to COVID-19 Infection Facts is not considered to be restricted.

A. Information relating to Infection Facts in respect of an employee's family members falls under the category of "Special care-required personal information" in respect of the employee’s family members. Therefore, in principle, it is necessary to obtain the prior consent of the employee's family members when acquiring such information.

In practice, however, it is expected that such information will be acquired and provided by the employee to the employer. In such a case, it is assumed that the employee who provides such information has lawfully obtained the information, such as by obtaining the consent of the employee's family members, and so the employer is not required to obtain the consent of the employee's family member in advance of the acquisition of such information (Aforementioned note 3).

A. In principle, the Act on the Protection of Personal Information stipulates that personal information shall not be handled beyond the scope necessary for the achievement of the specified purpose of use without obtaining the prior consent of the individual concerned (Paragraph 1, Article 16 of the Act on the Protection of Personal Information). However, in the following exceptional cases, it is possible to use such personal information for any purpose other than the intended use without the individual's prior consent. (1) cases based on laws and regulations (Article 16, Paragraph 3, Item 1 of the Act on the Protection of Personal Information), (2) cases in which there is a need to protect a human life, body or fortune, and when it is difficult to obtain an individual's consent (Article 16, Paragraph 3, Item 1 of the Act on the Protection of Personal Information), and (3) cases in which there is a special need to enhance public hygiene or promote fostering healthy children, and when it is difficult to obtain an individual's consent (Article 16, Paragraph 3, Item 3 of the Act on the Protection of Personal Information Protection).

First of all, it is necessary to examine whether informing the other employees is necessary for the achievement of the purpose of use stated in each workplace’s work rules and regulations on the handling of personal information. If the purpose of use is stated as "for business activities" etc., informing the other employees will be considered to be necessary for achieving the purpose of preventing COVID-19 infections and maintaining the health of the employees.

Next, if there is any doubt, the employer should obtain the infected individual’s consent or consider whether any of the exceptions in (1) to (3) above apply. In the same way as in the case of the acquisition of information relating to Infection Facts, it is possible to handle information for any purpose other than for the intended purpose without obtaining the individual's consent based on the exceptions in (2) and (3) above.

However, there is a court case where it was ruled that although providing information related to an employee's illness or test results without the employee's consent to related persons in the employee’s workplace did not fall under the provision of personal information to a third party as stipulated under the Act on the Protection of Personal Information because the information was provided to people within the same company, such provision of information could still be held to fall under the use of information for a purpose other than the intended purpose without the employee's consent, and therefore constituted a tort of infringement of the employee’s privacy (Fukuoka Koban January 29, 2015 Hantoki 2251 p. 57).

In light of this, we believe that an employer should make it impossible to identify an individual when informing other employees in the same workplace that "someone in the workplace was found to be infected".

A. Under the Act on the Protection of Personal Information (Personal Information made available for retrieval. Personal information entered into database, etc. (Paragraph 6 of Article 2 of the Act on the Protection of Personal Information)), when providing personal data (i.e. personal information entered into a personal information database etc. that enables specific personal information to be retrieved) to a third party (Main clause of Article 23, Paragraph 1 of the Act on the Protection of Personal Information), it is necessary to obtain the prior consent of the concerned individual in principle.

However, in the following exceptional cases, it is possible to provide personal data to third parties without an individual's consent: (1) cases based on laws and regulations (Article 23, Paragraph 1, Item 1 of the Act on the Protection of Personal Information), (2) cases in which there is a need to protect a human life, body or fortune, and when it is difficult to obtain an individual's consent (Article 23, Paragraph 1, Item 2 of the Act on the Protection of Personal Information Protection), and (3) cases in which there is a special need to enhance public hygiene or promote fostering healthy children, and when it is difficult to obtain an individual's consent (Article 23, Paragraph 1, Item 3 of the Act on the Protection of Personal Information Protection).

Therefore, in principle, the consent of the individual should be obtained, but in cases where it is difficult to obtain the consent of the individual, such as when they are hospitalized, it is possible to provide such personal data based on the exceptions in (2) to (3) above.

However, even in cases where an employer does not consider the information to be “personal data”, it should still carefully consider the question of whether providing such information is within the scope necessary for achieving the stated purpose of use.

Therefore, in most cases, we believe that an employer should make it impossible to identify an individual when informing other employees in the same workplace that "someone in the workplace was found to be infected".

A. The Ministry of Health, Labour and Welfare and public health centers, etc. also fall under the category of "third parties", and therefore in principle, the consent of an individual is required. However, in the following exceptional cases, it is acceptable to provide personal data to third parties without an individual's consent: (1) cases based on laws and regulations, (2) cases in which there is a need to protect a human life, body or fortune, and when it is difficult to obtain an individual's consent, and (3) cases in which there is a special need to enhance public hygiene or promote fostering healthy children, and when it is difficult to obtain an individual's consent.

Therefore, in principle, the consent of the individual should be obtained, but even in cases where it is not possible to obtain the consent of the individual, it is still possible to provide the information based on the exceptions in (1) to (3) above. For example, in the case of (1), questions and investigations based on Article 15 of the Infectious Diseases Act could be considered.

However, as in Q2 and Q3, it is necessary to consider whether the provision of such information is required to achieve the stated purpose of use, and therefore an employer should confirm the purpose and scope of any request for provision of information before providing such information.

A. If there is a provision in your contract stating that you shall be liable for damages in the event of a default of your contractual obligations, regardless of the cause of such default, then it is highly unlikely that you will be exempted from the liability for damages on the grounds of "force majeure".

On the other hand, in cases where there is no clear provision in the contract, "force majeure" is generally deemed to be a valid ground for exemption, and this has been acknowledged in some court cases. Whether or not the situation falls under the category of "force majeure" will be determined based on whether the cause for the default was external and could not be prevented even if reasonable care was taken to prevent such default. Also, there are legal theories stating that in the context of liability for default, the following factors are typically taken into consideration when determining the cause of default: (1) an obstacle beyond the control of the obligor, (2) obstacles that could not have been considered at the time of signing of the agreement, and (3) obstacles that are difficult to avoid and overcome.

Whether or not a default caused by COVID-19 is determined to be due to an event of "force majeure" depends on the individual judgment in each case. If you are unable to meet your contractual obligations due to the effects of COVID-19, there is a possibility that this issue may fall under the category of "force majeure" and you may not be held liable for default.

In cases where the existence of liability for default (Article 415 of the Civil Code) is disputed, the requirements for liability for default are: (i) the fact of default, (ii) a willful act or negligence (i.e., existence of cause attributable to obligor), (iii) damage, and (iv) a causal relationship between damage and default. Generally, in relation to the requirement of (ii) above, the obligor will only need to disprove the existence of cause attributable to the obligor which is a broader notion than “force majeure”. Therefore, any discussion on “force majeure” is generally made in the context of whether there is cause attributable to the obligor or not.

A. If there is a provision in your contract stating that the customer may terminate the contract if it is unable to receive the performance of your contractual obligations regardless of the reason for such non-performance, the customer may terminate the contract even if you assert that you are unable to perform your obligations due to force majeure.

On the other hand, in cases where there is no clear provision in the contract, under the Civil Code, the exercise of the right to terminate a contract on the grounds of default is generally not permitted unless there is a cause attributable to the obligor. Therefore, although each case will be determined on a case-by-case basis, according to the criteria described in Q1 above, there is a possibility that your customer may not be allowed to terminate the contract by claiming that the effects of COVID-19 is an event of "force majeure" and that as a result, there is no cause attributable to you.

A. If there is a provision in your contract to the effect that the customer shall be relieved from its obligation to make payment when it has been unable to receive the performance of your obligations under the contract, regardless of the cause, it is highly likely that you will not be able to demand for payment from your customer even if you assert that you are unable to perform your obligations due to “force majeure".

On the other hand, in cases where there is no clear provision in the contract, under the Civil Code, in general, a demand for payment from a customer cannot be made (Article 536(1) of the Civil Code). However, if the failure to perform the non-monetary obligations is attributable to the obligee, for example, if the customer fails to accept the performance at the time when the customer should have accepted the performance, and thereafter the effects of COVID-19 causes a situation in which your obligations under the contract cannot be performed, you can still demand for payment from your customer (Article 536(1) of the Civil Code).

However, if you fail to fulfill your obligations by the due date but are able to continue to perform your obligations, you may not demand payment until you perform your obligations (Defense for Simultaneous Performance, Article 533 of the Civil Code). On the other hand, if you are no longer able to perform your obligations due to the effects of COVID-19, you may be able to demand payment, depending on whether or not there is any cause attributable to the customer. However, in such a case, you must reimburse the customer for any profit earned by your failure to perform your obligations, such as expenses that would have been incurred if the obligations had been performed (2nd sentence of Article 536(2) of the Civil Code).

A. As a general legal principle (although not expressly stipulated under Japanese legal codes), contracts are valid under Japanese law as long as parties reach an agreement, regardless of whether such agreement is reached verbally, electronically, or by way of writing in a physical document (e.g. written on paper). Under such principle, contracts executed by electronic signatures (“e-signatures”) are generally valid under the Civil Code.

Notwithstanding the above, in cases where a party wishes to enforce a counterparty’s obligations under an electronically signed contract in the Japanese courts because the counterparty has failed to perform its obligations under the contract, such party (the plaintiff) would need to prove the rights and obligations of the parties under the electronically signed contract in the courts in accordance with the Code of Civil Procedure. In this regard, under Article 228(4) of the Code of Civil Procedure, contracts are “presumed” to be duly executed by the parties if a signature or seal of a person or its duly authorized representative is physically affixed to such contracts. The question here is whether such presumption of due execution would apply to contracts executed by electronic signatures.

In general, Japanese courts have a broad discretion in admitting and evaluating evidence, and there are no specific legal and technological requirements for what constitutes a valid e-signature. However, it should be noted that a special law regarding e-signatures was enacted in Japan in 2000.

The Act on Electronic Signatures and Certification Business (the “E-signatures Act”) recognizes e-signatures as a valid method of entering into agreements, and sets out a condition for the presumption of legal authenticity for electronically made contracts that meet the requirements under the E-signatures Act. In this regard, Article 3 of the E-signatures Act provides that contracts are presumed to be duly executed if the e-signatures are affixed in a way that satisfies the criteria that “such e-signature can be performed [only] by the signatory through appropriate management of codes and properties necessary to [affix the e-signature]” –. The aforesaid condition can be satisfied by way of various types of technologies and whether a certain e-signature meets such condition is determined at the discretion of the court.

In addition, there are certain authorized e-signature service providers which the Ministry of Justice recognizes as providing services which would satisfy the conditions of the E-signatures Act. The list of such authorized e-signature service providers can be found at their website (in Japanese only). This list is not intended to be an exhaustive list of authorized e-signature service providers, and a party to an electronically made contract may be able to satisfy the above-mentioned condition using new technologies that are not utilized by such authorized e-signature service providers. Again, however, whether or not a certain e-signature would be deemed to satisfy the above-mentioned condition is determined at the discretion of the court.

A. There are certain contracts which need to be “executed and delivered in writing” in order to be valid under Japanese law, such as a fixed term land lease agreement (teiki-shakuchi-keiyaku), a fixed term building lease agreement (teiki-tatemonochintaishaku-keiyaku) and a notice of employment terms and conditions (roudoujoken-tsuchisho) (collectively, “Documents Requiring Physical Delivery”). Using e-signatures in respect of Documents Requiring Physical Delivery would make them unenforceable under Japanese law.