Coreia do Sul e Japão: diferenças normativas na proteção de dados e seus reflexos na decisão de adequação da união europeia

Abstract

This investigation compares the Japanese and South Korean data protection systems, starting from the hypothesis that the impact performed by the data protection institute holds differences in terms of implementation and application in the two systems in question. The research problem devised to verify the hypothesis stems from marking out the main differences between Japan and South Korea's data protection legislation and understanding how possible divergences between the two legal systems would influence the European Commission's adequacy decision. The study adopted a qualitative comparative methodology, based on an analysis of configurations of conditions, investigating the phenomena as processes of relational needs configured from their insertion in the context under study. After the inspection of the two legal orders, considerable structural divergences were found between the Japanese and South Korean data protection systems and their impacts on the European Union's adequacy decision. As for the distinctions between the regulations, the Japanese one is more lenient regarding the responsibilities of those who control the data and the holders' rights, an identity in line with the Japanese cultural baggage and moral customs. On the other hand, and also for cultural reasons, the South Korean data protection institute has strict biases regarding data protection. This characteristic originates from a period of military domination in which intense state surveillance devices were maintained on the population, resulting in a structure of complete and rigorous data protection norms for the defense of the holders. Regarding the impacts of these characteristics on the adequacy decision, in the case of Japan, the adopted models, despite being based on Western concepts, are equally based on local cultural principles, which can generate complexities in terms of data protection between the European Union and the latter country. On the other hand, in the case of South Korea, there is apparent convergence of local culture to norms originating in the EU, which guarantees greater security regarding data protection between the block and the latter nation. Finally, it should be noted that the safety and regulation of the data protection institute is an indispensable factor for the balance between the economic interest and the protection of an individual's privacy.