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2006.04.12

個人情報保護法のどこが間違っていたか?

 社団法人日本新聞協会(以下「新聞協会」という)は、本年4月7日、「個人情報保護法のヒアリングに対する意見書」を発表した。これは、内閣府の国民生活審議会・個人情報保護部会のヒアリングにおいて、個人情報保護法施行による過剰反応や委縮現象が出ている実態を指摘して意見を表明したものである。

 個人情報の保護に関する法律(以下「個人情報保護法」という)は、2003年5月に成立し、2005年4月から完全施行されている。

 新聞協会は、今回の意見書において、

現状では、「個人情報は隠すべきだ」との誤解がまん延し、社会活動のあらゆる分野において、深刻な委縮現象や混乱が目立っている。
と述べるとともに、
・・・問題なのは、法律の拡大解釈とも言える行政の情報非開示の動きである。従来は公表していた幹部の天下り先を伏せたり、不祥事を起こした職員の名前を公表しなかったり、幹部公務員の経歴を省略したりするケースが少なくない。当然公表すべき「公共の利害」に関する事項さえ、「個人情報の保護」を理由に情報の隠ぺいが進んでいる実態は、法律が想定した保護範囲を大きく逸脱するものと言わざるを得ない。行政の透明性確保を目的とした情報公開法の趣旨にも反するものである。
と述べ、

 

個人情報を適切に管理し、保護することは当然のことだ。しかし、本来、国民が知るべき情報や、地域社会で共有すべき情報まで隠すことは許されない。
 匿名化の流れは「知る権利」を脅かし、「表現の自由」や健全な民主主義社会の根幹を揺るがしかねない。そのことに対し、私たちは強い危機感を抱き、深く憂慮している。

と述べて、個人情報保護法の見直しが急務であると指摘している。

 私も、新聞協会の意見書の指摘には基本的には同感である。ただ、ここでどうして個人情報保護法がそのような誤った方向に運用されるに至ったかを考える必要がある。

 そもそも、日本には、アメリカ法の影響を受けて、戦後、プライバシーの権利が判例法上確立している(新保史生『プライバシーの権利の生成と発展』〔成文堂、2000〕参照)。
 個人情報の保護を考えるに当たっては、このプライバシーの権利を中核に据えて法案を作成することも可能であったはずであるが、そうなっていない。

 ところが、個人情報保護法2条1項は、「個人情報」の定義として、

 この法律において「個人情報」とは、生存する個人に関する情報であって、当該情報に含まれる氏名、生年月日その他の記述等により特定の個人を識別することができるもの(他の情報と容易に照合することができ、それにより特定の個人を識別することができることとなるものを含む。)をいう。
と規定して、「個人情報」をプライバシーの権利とは異なる概念として規定している。このような方向性を肯定的に捉える考え方も多い。  例えば、藤原静雄『逐条個人情報保護法』(弘文堂、2003)2頁は、
・・・プライバシーよりも外延のはっきりした広い集合としての「個人情報」を保護しようとするのである。それゆえ、「個人情報」を個人を特定できる情報と明確に定義するのである。
と述べている。ここでは、個人情報保護法が保護しようとする「個人情報」という概念とプライバシーの権利の概念が異なることが明確にに意識されている。

 この点については、個人情報保護法を法律家の立場からいち早く分析し、啓蒙的な活動を展開されている岡村久道弁護士の理解は極めて大変に参考になる。
 すなわち、岡村久道『個人情報保護法』(商事法務、2004)4頁において、

 プライバシーの権利は、本人の権利として認められるものであり、主として権利侵害が発生した場合の事後的な救済措置(差止め請求、損害賠償請求権等)としての機能を営んでいる。これに対し、個人情報保護法制は、主として個人情報の適正な取扱いに関するルールを定めることにより、行政機関による監督という方法によって実効性を担保しようとするものである。  それゆえ、個人情報の取扱いについては、どちらか一方のみではなく、その双方が遵守されなければならない。
と正当にも指摘している。

 ただ、現在、問題になっているように、個人情報保護法運用の現場においては、プライバシーの権利に対する配慮はなされず、個人情報保護法だけを盾に取るような運用がなされている点に問題がある。

 特に、行政機関が、個人情報保護法を縦にして、公務員幹部の天下り先や、不祥事を起こした職員の氏名幹部公務員の経歴等を公表しないという対応をしている点は極めて憂慮すべきことである。

 これは、個人情報保護法が、 「個人情報」という概念を、プライバシーと異なる概念として規定し、その主体が行政機関側か、国民側かという違いを全く抜きにして、中立的に規定したために生じている。

 この点について、プライバシーという概念を中核に据えて「個人情報」という概念を規定しておけば、公務員が、国民に対する「奉仕者」であり(憲法15条2項)、国民が有している公務員の選定罷免権(同1項)を行使するために、公務員の適格性を判断するために必要な情報が主権者である国民にあまねく提供されなければならないという憲法原則からすれば、上記の公務員幹部の天下り先や、不祥事を起こした職員の氏名、幹部公務員の経歴等がプライバシーとして保護されることは本来ありえないはずである。

 その意味において、個人情報保護法が制定された時から、この法律は限界や欠陥を有しており、行政機関側はそれをあえて承知の上で、この法律を制定させ、施行後はこの法律を盾に、これまで隠蔽することができなかった各種の都合の悪い情報についての隠蔽を正当化しようとしているのである。

 したがって、個人情報保護法については、そもそも根本的に、そのあり方を見直す必要がある。特に、行政機関側が、都合の悪い情報を隠蔽することを正当化することを認めるような構造となっている点は早急に改めなければならない。

 与党は、今通常国会に、個人情報保護法を改正して、情報漏洩罪を新設しようとする考えを持っていると伝えられている(昨年の通常国会に提出しようとしたができなかった。これについては、私もこのブログにおいて、「情報漏洩罪は必要か?」として批判している)。
 ただ、最近になって、そもそも、個人情報保護法自体を見直す必要があるという動きの中で、情報漏洩罪新設の動きもトーンダウンしているように見える。

 新聞協会は、当初はこの法案成立に強く反対していたが、法案において報道機関等を除外することになったため、途中から反対しなくなったという経過がある。今回、その新聞協会が、個人情報保護法の見直しを主張するに至ったのは誠に皮肉なことではある。

 私自身は、個人情報保護法はそもそも悪法であり、根本的に見直すべきだと考えていたが(私のホームページの「プライバシーの権利の観点から見た個人情報保護法案の法的な問題点」参照)、改めて、個人情報保護法の根本的な見直しが必要であると指摘しておきたい。

【Today's Back Music】
 佐山雅弘ベスト1984-2005/クロニクル(VICJ-61346)
  ピアニスト佐山雅弘のベスト盤ですが、非常に選曲がよく、何度聴いても飽きないアルバムとなっています。特に1曲目のMIND TALKと11曲目のSPAINはお気に入りです。

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