Japan’s ‘consensual’ variety of digital capitalism and its global relevance

Abstract

Data regulation has been framed as a global battle between the market-driven US, the state-driven Chinese, and the rights-driven EU models. We argue that Japan is pursuing a distinct fourth, consensus-driven approach. It is based on soft regulation and aims at striking a balance between privacy concerns and commercial and public interests in the usage of data. The concept of consensus is deeply rooted in Japan’s legal tradition. Its application to data regulation is apparent in the domestic certification scheme for information banks and the international initiative ‘Data Free Flow with Trust’. We also show that Japan’s COVID-19 countermeasures relied on data strategies fully compatible with its consensual regulatory model. By combining rights-driven and market-driven aspects, Japan can potentially mediate between the EU and the US regimes. Japan’s approach also offers an attractive alternative for countries that do not want to pick a side in the Sino-American competition.