Alert:Telecommunication Business Law amendment in Japan and Foreign Legal Persons

This is English version of my blog entry.

“A bill to partially amend the Telecommunications Business Law and Nippon Telegraph and Telephone Corporation Law” has been published. Link(Japanese) is here.

This bill is aiming to ensure the enforcement of telecommunication business law against foreign telecommunication provider such as Google .

According to the press, “Cabinet Decided Extra-Territorial  Application of Secrecy of Telecommunications “( in Japanese)

I discussed in detail in my blog titled  “Read the report of the Ministry of Internal Affairs and Communications Experts’ Meeting, which try to apply the”secrecy  communication clause to foreign capital company.”

Let’s take a look at the overview.

It states, “There is a limit to the enforcement of the Telecommunications Business Law against foreign corporations, etc.”  and “Not enough protection to subscribers in Japan””Not equal competition conditions between domestic and foreign providers.”

And the figure in the overview,

 

 

 

 

 

This figure shows that “service provision in Japan” can be the connection point of domestic law of legislative jurisdiction and the Telecommunications Business Law of Japan can be  applied as long as connecting point exists in Japan.

Even a foreign corporation (definition is described below)  is obliged to register and submit as telecommunication business provider as long as it provides telecommunication business service toward service subscriber in Japan. That is the principle of the Telecommunications Business Law in Japan. This is, as mentioned in the blog above, the same as the logic of Article 63-22 of the Financial Payment Services Act.

In short,it is obvious that legislative jurisdiction extends to foreign corporations.Strictly speaking ,from international law concerns,the enforcement is another issue. That is the reason why the outline of the amendment slide slides emphasized that “to ensure the enforcement of the Telecommunications Business Law against foreign corporations, etc. ”

So if you’re a lawyer, you shouldn’t use the phrase “extraterritorial application” to “foreign corporations” contrary to the press saying.

Next,make  analysis based on articles of the bill.

First, in the context of Article 2 of the Revised Act, a foreign corporation is defined as “a foreign corporation , organization or  an individual with an address in a foreign country.”

Article 9 of the Business Law states

A person that intends to operate a telecommunications business must obtain a registration from the Minister for Internal Affairs and Communications; provided, however, that this does not apply to the following cases:

and Article 10 sets out that

(1) A person that intends to obtain a registration as set forth in the preceding Article must, pursuant to the provisions of Order of the Ministry of Internal Affairs and Communications, file a written application describing the following particulars with the Minister for Internal Affairs and Communications:

and amendment bill add article 10-2 in the following

10-2 In the case of foreign legal persons etc.(omit) , the name and adress of its representative in Japan  ;

In short, as long as service provider provides  substantial telecommunications business services to subscribers in Japan substantially,such provider owes an obligation to register as telecommunications business services.

The next issue is whether  search service and the e-mail service is regarded as “substantial telecommunications business service” or not.

I mentioned in the blog above in detail.

This amendment seem to acknowledge following issues in the followings.

1)Effect of failure of registry of foreign legal persons

2)engorcement jurisdiction issues

3) interpretation of  substantial ” telecommunications business”

and so on.

I would like to analyse these iuues further. Research funds may be necessary. Please contact via contact form.