The Right to Privacy in East Asian constitutionalism in comparative perspective: the case of China and Japan1

Abstract

The data privacy framework in Asia has undergone an important transformation in the last years. In this article, starting from the definitional frame of reference in the field of privacy, I will propose a juridical-historical perspective, which I believe helps in understanding some East Asian legal systems, especially the fundamental differences between China and Japan. Notwithstanding the importance of cultural tradition that tends to associate privacy protection with a hierarchical system of moral outlook, the privacy regulation must also be understood as embedded in the political context of the aforesaid countries. In this light, while Chinese and Japanese laws share the same core data protection elements found in every privacy law in the world, they each have their own specific rules that differ from each other and from those in other regions. It will be interesting to see the evolution and differences in China and Japan as to privacy and data law protection and some important recent developments, focusing specifically on protected interests and the control of information, considering also the active role of courts. In this framework neither traditional vision nor modern legal structures are static, being both continually transforming, and accommodating to dynamic local, regional, and global pressures, while China, unlike Japan, is showing its own attitude: indeed, China follows a trend towards “substantive” constitutionalism and finally towards the rule of law.