Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records (i.e., scanned copies of paper originals) during most government agencies’ inspections and audits or in court proceedings.
In Japan, the evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy. In specific situations, it may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
Under Japanese e-Document law (2005), electronically scanned copies are considered legally valid as long as the original document is allowed to be created in an electronic format. That said, a copy of a document is not considered to have the same value as the original (whether electronic or paper) in Japanese civil procedures.
Therefore, where an electronic document is a scanned copy of a paper original, its value as evidence is less than that of the paper original. Conversely, where a paper document is just a printed copy of the electronic original, the paper’s value is less than that of the electronic record. In instances where a scanned copy looks substantially the same as the original and it’s successfully established as similar, the copy may have nearly equal value.
Are there any legal requirements for electronic archiving systems (EAS)?
There are no legal requirements for electronic archiving systems in Japan, but any archives that include personal information should include security measures to prevent leaks, damage and loss (Amended Act on the Protection of Personal Information, 2016).
HR Best Practices: The full electronic archiving era is approaching, but for now it is not possible to guarantee that all paper documents can be destroyed. Employers that want to switch to electronic-only archiving In Japan should consider developing processes that require electronic-only originals (where possible).
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.