The Path and Reflection of the Right to be Forgotten in China
LIU Yanpeng*
Abstract: With the development of the internet, the right to be forgotten recognized by the EU has gradually entered the research field of Chinese academia. Since then, Chinese scholars have analyzed the necessity and feasibility and also the possible ways in which the right to be forgotten might be safeguarded. However, the argument of the right to be forgotten and its path deserve to be further discussed. The right to be forgotten is not a solution to the violation of personal information in China because our domestic systems and practices have allowed individuals to delete online information and the construction of the forgotten right with the right of personal information as the core may hinder the development of the Internet. This article suggests that the introduction of the right to be forgotten should follow China’s na-tional conditions and should be constructed with privacy as the core in the system design, and the content should further clarify personal data. The subjects of data should be differentiated in specific imple-mentation and the scope of application should encompass the criminal field.
Keywords: Internet the right to be forgotten legislation
In the case of Google Spain vs. González in 2014, the European Court of Justice judged that Google had an obligation to remove search links with the name of the in-formation agent as the keyword. This ruling caused a sensation and prompted the Eu-ropean Union to introduce legislation on the right to be forgotten. The General Data Protection Regulation (GDPR) passed in 2016 by the European Union confirmed people had the right to be forgotten. According to the GDPR, the so-called right to be forgotten means the data subject has the right to require the data controller to delete relevant data without undue delay when requested to do so. This right originated from the EU Data Protection Directive.1 The idea can be traced to French law, which aims to protect against the damage caused by the secondary exposure of a person’s previ-ous conviction in the news media.2 From the contents of the right, this right is closely related to the right to deletion, the right to objection and the right of correction in the laws of many European countries regarding the protection of personal information.3 In essence, the aim of the GDPR is to protect netizens against the adverse impact of past internet events. Except for the lawful reason to preserve the data, the data subject has the right to request to be forgotten by the internet and has the right to require the data controller to delete the personal data. regarding the rising right to be forgotten in foreign countries, Chinese scholars point out that the rise of this right is of great im-portance for protecting the individual information freedom and rights in China. It not only helps promote the promulgation of the Personal Information Protection Law, but also assists in protecting the rights of personal information.4 Is the right of to be for-gotten determined by the European Union in line with China’s reality? How shall we apply the path of the right to be forgotten in China?
I. Several Paths of Localization of the Right to be Forgotten in China
The right to be forgotten, as a weapon to protect personal information, will surely spark a chain reaction, which will not only affect the development and trend of the internet, but also reshape the relationship among the state, enterprises and individuals on the internet. Whether China should introduce and if so how to introduce the right to be forgotten has become the focus of discussion in the academic circles. In this regard, Chinese scholars demonstrate the necessity and feasibility of the right to be forgotten in China, and explore the future system design.
A. Necessity argumentation5
1. The establishment of the right to be forgotten helps to achieve personal data self-determination
The comments expressed by citizens, the photos shared, or the articles forwarded on the internet are all manifestations of citizens’ freedom of speech. From the point of view of data ownership, content that does not constitute infringement belongs to the individual citizen. Determining the right to be forgotten helps achieve personal data self-determination.
2. The right to be forgotten helps balance the relationship between individuals and large internet companies6
Compared to large internet companies, the power of individuals is weak, and the disclosure and unauthorized use of citizens’ personal information occurs occasionally. The right to be forgotten is a means for citizens to counterbalance the power of the internet companies.
3. The establishment of the right to be forgotten is conducive for individuals to escape from data monitoring
Today, the internet has become the main and most convenient platform for shop-ping, travel, networking, and entertainment. As a result, the internet companies hold a wealth of personal data and clearly know the address, telephone number, hobbies and consumption level of each netizen, and can quickly predict every individual’s interests and hobbies, thus pushing targeted information. It can be fairly said that the ubiqui-tous internet has formed “digital prison” and every netizen is a “prisoner”, without any freedom and privacy whatsoever. The confirmation of the right to be forgotten can help individuals escape data monitoring and protect private data from being unscrupu-lously exploited by data supervisors.7
B. Feasibility argumentation
1. The booming internet is the basis for spawning the right to be forgotten
According to the 41st Statistical Report on the development of the Interned in China, the country is evolving from a big internet country to an internet power. In terms of internet companies, by the end of December 2017, as many as 102 Chinese internet companies had been listed overseas, with a total market capitalization of 8.97 trillion yuan. In terms of the number of internet users, by the end of December 2017, there were 772 million internet users in China, meaning a penetration rate of 55.8 per-cent. In terms of age structure, netizens aged 10-39 accounted for 73 percent of users, of which the proportion of netizens aged 20-29 was the highest, at 30 percent. The proportion of users aged 10-19 was 19.6 percent and those and aged 30-39 accounted for 23.5 percent of users. In terms of mobile payments, mobile payments have now become the preferred payment choice for urban residents, and are also gradually gain-ing popularity in rural areas. The proportion of mobile payments by mobile users in rural areas jumped from 31.7 percent at the end of 2016 to 47.1 percent by the end of 2017.8 In terms of public services, bike sharing has become part of transport means in China, and is also available in 21 overseas countries, becoming the symbol and busi-ness card of China’s innovation. The booming internet market gives rise to informa-tion and data explosion. According to statistics, China’s mobile internet access flow in 2017 was 24.6 billion gigabytes, about 61 times that in 2010.9
2. The violation of personal information on the internet is a realistic condition for the existence of the right to be forgotten
The booming internet market has led to the explosive growth of the internet. But while enjoying the benefits of the internet, netizens are often victims of the internet.
The internet service providers require users to provide a range of information includ-ing their mobile number, email, and social media details and to turn on the location finder, camera, and other functions. These requirements are the precondition for the enjoyment of services. By the end of 2017, there were 3.91 million mobile apps in China, which means that 3.91 million programs may have obtained various types of information, such as personal location information, scanned text messages and calls, or scanned photos. Also a wealth of user information gathered online is leaked or hacked. Personal information is not only circulating in the market as a commodity, but also remains on the internet as public information. According to the 41st Statistical Report on the Development of the Internet in China, about 18.8 percent of netizens in 2017 had their accounts or passwords stolen; 26.6 percent encountered internet fraud; 27.1 percent said their personal information was leaked; and 18.8 percent suffered an attacked by computer virus or Trojan horse.10 Unlike paper media and the human brain, data storage on the internet is long-term, permanent and stable. As long as the storage device is not out of condition, the information is basically kept forever on the internet.11 Network operators require users to provide information on the one hand, and cannot absolutely ensure informant leakage on the other. As a result, the majority of netizens have no privacy whatsoever in the cyberspace.
3. Scattered and unsystematic laws and regulations are institutional conditions for the existence of the right to be forgotten
In fact, China, as a big internet country, began to build a rule-based system for internet governance, has set up a framework system for personal information pro-tection based on laws, administrative regulations, ministry regulations, and guiding opinions. At the legal level, the General Provisions of the Civil Law endows personal information with autonomy and stipulates that enterprises, organizations and individ-uals should not collect, use, process, or transfer personal information of others against the law, and should not buy or sell, provide or make public personal information of others against the law; regarding the information deletion after infringement, the Tort Law stipulates that the infringed has the right to require the network service provider to provide the deletion service.12 In terms of decision-making documents, the National People’s Congress passed the Decision on Strengthening the Protection of Internet In-formation on December 28, 2012, stipulating the principle regulation on the deletion of personal information.13 At the level of guiding opinions, the Ministry of Industry and Information Technology released the Information Security Technology — Guide-line for Personal Information Protection within Information System for Public and Commercial Services and the Information Security Technology, Public and Commer-cial Services Information System’s Personal Information Protection Guidelines (here-inafter referred to as the “Guidelines”). The above two guidelines stipulate that infor-mation processors shall delete the relevant information in a timely manner when the information subject has a reasonable reason to delete personal information. Although there is a trace of the right to be forgotten in the laws, decisive decision-making doc-uments, and guiding opinions, it is not equal to confirmation of the right to be forgot-ten. At the legal level, the deletion stipulated in the Tort Law is limited to the infring-ing information, and the information claimed to be deleted in the right to be forgotten is not necessarily the infringing information, and it does not cover all claims of the right to be forgotten. In terms of decision-making documents, some scholars hold that the documents of the National People’s Congress roughly mention the issue of the de-letion of personal information. It has the role of publicity, without being feasible.14 In terms of guiding opinions, the regulations are too generalized and not operational. For instance, the two guidelines do not clarity what good cause is. As the two guidelines are technical guiding documents, these are not legally compulsory and cannot ensure the realization of rights. It can be said that the current laws on forgetting/deleting per-sonal information are too fragmented, making it hard to exert real effect.15
C. Path selection of localization
How the right to be forgotten established overseas can be localized has becomes an important part of the academic discussion. At present, there are roughly three views on the implementation path of the right to be forgotten, namely personal information protected as a personal information right, protected as a privacy right, or protected as a personality right. The right to be forgotten protected as a personal information right has become the mainstream opinion in the academic world.
1. The right to be forgotten should not be protected as a right of personality
The object of the right to be forgotten has significant personality characteristics. The information referred to in the right to be forgotten is that of specific individuals, and it is mostly closely related to personal reputation and personal dignity.16 Many European countries define the right to be forgotten as a personality right or personality status right because it is aimed at protecting individuals.17 In the cases of the right to be forgotten on the internet environment in developed countries such as Japan and Switzerland, judgments were based on the grounds of infringement of personality rights.18But although the right to be forgotten has personality rights attributes, it cannot be recognized as a new type of specific personality right, but should be recognized as a personal information right. On the one hand, there is no relevant theoretical reserve and judicial experience in China; on the other hand, the right to be forgotten is mainly a means of realizing the protection of the personal information right, so the right to be forgotten should not be protected as personality rights.19
2. The right to be forgotten should not be protected as a privacy right
Some scholars hold that personal information is valued because the personal information is essentially private.20 The United States protects personal information by extending the connotations of the right to privacy.21 If the right to be forgotten is recognized as a component of the right to privacy, then its content is directly protect-ed under paragraph 2 of Article 2 of the Tort Law, and it is more convenient in terms of the application of law. But the privacy right and the right to be forgotten are still essentially different: in terms of the object of the right, the privacy right emphasizes non-public private information, whereas the right to be forgotten stresses public infor-mation on the internet; in terms of the content of right, the right to privacy emphasizes preventing the secrets of an individual from being known by others, while the right to be forgotten mainly requires the deletion of personal information already disclosed; in terms of use of right, the privacy right is a kind of protective right, while the right to be forgotten means the subject of right proposing the deletion of personal informa-tion.22
3. The right to be forgotten should be protected as a personal information
right
The personal information right means that the information subject has the right of control over his or her own information and can exclude others from making unau-thorized use of it.23 The development of the internet has spawned personal information rights, and the right to be forgotten is just one of the key components of the personal information right. The information subject has exclusive autonomy over personal information, and any organization and individual shall obtain the personal information of others through lawful means or authorization. The information subject can give consent to organizations or individuals to collect, use, process or transmit personal information, and also require them to delete personal information by withdrawing au-thorization. The right to be forgotten incorporated into the personal information right will be beneficial to the system synergy and construction. Article 111 of the General Provisions of the Civil Law stipulates that personal information is protected by the law and is on a par with the personality right (Article 110), personal freedom and personal dignity (Article 109), laying a solid foundation for the establishment of the right to be forgotten.
In summary, the academic community generally holds that the right to be for-gotten is a means of realizing protection of personality rights, rather than a specific manifestation of personality rights; the right to be forgotten overlaps with the right to privacy to a certain extent but is not completely subordinate to the right to privacy; under the current institutional arrangements in China, the right to be forgotten is an important part of the personal information right.
II. Reflection on the Issue of Localization of the Right to be Forgotten in China
The possible adverse effects of the right to be forgotten as raised by domestic and foreign scholars are summarized as follows: First, the abuse of the right to be forgot-ten may infringe on freedom of speech. When citizens have the right to be forgotten, internet companies often delete some information on their own in order to avoid lawsuit. As a result, a wealth of news reports and speeches cannot be made online. In fact, this has corresponding consequences in Europe. For example, in early July 2014, many British media entities accused Google of excessively pandering to some peo-ple’s appeals for the right to be forgotten. Some reporters found that articles published by them previously had been removed.24 Second, the right to be forgotten may threat-en public security. There is possibility of some criminals re-offending. For example, the drivers in the “70-mile drag racing case” in Hangzhou engaged in drag racing again and rolled over after being released from prison. If the relevant reports about a criminal many years ago were deleted, it would not serve as a warning. But for Chi-na, the problems of directly promoting the right to be forgotten go beyond this. Even the premise, necessity and scope of application of the right to be forgotten should be re-examined.
A. Permanent memory is not a natural attribute of the internet
Some scholars hold that the development of the internet has caused the loss of ability to forget in society, and created a perfect memory.25 In fact, the so-called per-fect memory is only in theory. In practice, very little information is preserved forever. The data on the internet will also die. No platform can have memories that will never die.
1. The storage device does not allow permanent memory
The internet needs to store huge amounts of information, and the replacement of storage devices can lead to the deletion of much useless information. Since the advent of the internet, storage devices have undergone a seismic change. From the original magnetic tapes to floppy disks, compact discs, mechanical hard disks, to solid state disks, the emergence of new efficient storage devices will inevitably lead to gradual loss of information stored in previous-generation storage devices. For example, most people are currently unable to use video tapes and magnetic tapes, while the devices that plays these products are close to being eliminated. Only information of special importance is converted and backed up, while the rest is basically removed. Even if the devices are not upgraded, the storage time limit leaves a lot to be desired. General-ly, some data on a CD cannot be read 5 years after storage; mobile hard disks must be backed up after 10 years.
2. The life of data depends on the life of Internet companies
Personal data exist because of the internet companies. Once internet companies fail, the personal data kept by them will then disappear. The average life of internet companies in China is generally 3-5 years, and the short-lived internet platform is ob-vious to all. For example, FanFou in the social networking field, “3721” in the search field, and “8848” in the e-commerce field are all examples of companies that failed. Short-lived internet companies cannot support the long-term existence of information, and disappearing with the internet companies is the personal information they store. For example, the cash-splashing war in the group buying field led to the disappear-ance of over 1,000 group purchase websites, and the individual registration informa-tion, personal consumption information, personal ID information and communication information stored by these websites also disappeared.
3. Information explosion causes information annihilation
In the information explosion era, social hot issues can be spread all over the world in a more convenient, faster and extensive fashion thanks to the progress of the mobile internet. Also, the public’s concentration becomes further fragmented. Current breaking news may be overshadowed by the next hot event at any time, and even sen-sational news will be forgotten soon. The value of information lies in being the focus of people’s attention. If people do not pay attention to information, the effect is the same as it being lost even if it exists on the internet.
In summary, permanent memory is not a natural attribute of the internet. Informa-tion on the internet has a certain life expectancy and will be affected by factors such as hardware devices, internet platform, and information annihilation. As a premise of the right to be forgotten, the idea of permanent memory is non-supportive.
B. The right to be forgotten does not stop personal information being infringed upon
Although the right to be forgotten can give citizens the right to delete online in-formation, personal information will still be infringed upon, even if all the information on the internet is deleted. The right to be forgotten has a marginal role in the protec-tion of personal information.
1. The main reason for the infringement of personal information is information disclosure
Compared with the rumors and negative evaluations on the internet, information leakage in the Chinese context is the principal reason for the personal information infringement. Personal information infringement is mainly manifested as property losses due to spam SMS harassment, cyber fraud, account password theft, and the like. Information harassment, cyber fraud and property losses are attributable to leaks of personal information. According to Report on China’s Personal Information and Privacy Protection survey, more than 70 percent of the respondents said that personal information leaks are a serious matter, and have become the chief reason for infringe-ment of personal information.26 For the European Union, there is strict protection of personal information. Information sharing among parent company and subsidiaries will be prosecuted, as well as deliberate leakage of user’s information.27 The European Union has the ability to endow the right to be forgotten to citizens on the basis of pro-tecting the user’s information from being leaked, safeguarding personal information of citizens in an all-around fashion. China should, first and foremost, focus on solving the problem of information leaks, rather than removing outdated negative comments online.
2. The right to be forgotten cannot effectively prevent information leaks
The information to be covered by the right to be forgotten is the shared infor-mation available on the internet, which any citizen can view. The information leaked is mainly private information such as account passwords, personal photos, and call records. That is, even if each citizen has the right to delete obsolete information on-line, they cannot delete the non-public information collected by platforms, much less personal private information stolen by hackers through Trojan horses and computer viruses. In China, the right to be forgotten cannot solve the main problem of personal information infringements.
3. The right to be forgotten may help those who leak personal information to avoid sanctions
For leakers of personal information, the news reports on the internet are the main obstacles to their reentering the information collection, management, and disposal in-dustries, in addition to the administrative penalties or criminal penalties. If the right to be forgotten is extensively applied, those companies that once leaked information will stage a comeback in a disguised manner after deleting the negative information on-line. At this time, the right to be forgotten may become an accomplice to those leaking information.
C. Existing systems and practices allow individuals to delete information
As a big internet country and internet power, China has developed proven man-agement measures and means for regulating internet operations.
1. The mainstream social network platforms allow publishers to delete personal information on their own
Social networking is currently the most active online platform, with strong in-fluence and communication ability. Information publishers may post inappropriate comments and photos in an excited stage or without due consideration, and regret this afterwards. In order to protect the user’s right to information self-determination, all social networking platforms allow publishers to delete unnecessary data on their own and fully respect the user’s right to self-determination on information. Once the data source information is deleted, the related forwarded information will also disappear. Regarding information published on the WeChat public account, for example, all for-wards will be deleted once the author deletes the information source.
2. The main information search platforms allow the data stakeholders to apply to delete personal information
Search engines allow individuals to apply for the deletion of information. As an important platform for sorting and gathering information, search engines are a win-dow for understanding other information. The right to be forgotten established by the European Union was introduced in large measure counter the search engines led by Google. In China, major search platforms, including Baidu, 360, and Sogou, provide deletion services. For example, Baidu includes “Reporting Website”, “Complaints of Infringing Information”, “Delete/Update Snapshot”, etc. on its service page. If the search pages infringe personal privacy or have other infringements, Baidu will delete the related snapshots as required by the customers.
3. Other online platforms allow individuals to apply to delete some information
In addition to social networking platforms and search engine platforms, other platforms also have channels for deleting information. Once the information on a plat-form is suspected of infringing the rights of others, the infringed has the right to notify the network service provider to take necessary measures such as deletion, blocking or disconnecting links.
Although the right to be forgotten is unavailable in China, in practice, the in-formation publishing platforms and the information search platforms allow users to actively delete or apply to delete information. Regarding infringing information, other online platforms allow users to apply for deleting the relevant content. It can be said that the existing systems and practices have the effect of the right to be forgotten to some extent.
D. The right to be forgotten as a personal information right may hamper the development of the internet
As mentioned above, the right to be forgotten is an important tool for personal information self-determination as part of the personal right to information. However, as an important means of personal right to information, the right to be forgotten may increase the burden on internet companies, hamper the operation of the internet mar-ket, and compromise the national internet strategy.
1. The burden on internet companies will increase
Before the right to be forgotten is widely used, there were only two forces of internet power: governments and enterprises. A government formulates rules, and the enterprises conduct business activities under the guidance of the rules. Once the individual is given the right to be forgotten, the individuals – as a new force – will in-directly increase the burden on internet enterprises. From the situation in Europe, after the Google Spain case came into effect, Google received 490,000 applications from citizens to exercise the right to be forgotten within six months, and deleted 41.8 per-cent of the links.28 It can be foreseen that after the right to be forgotten is widely used in China, most of China’s online platforms will be busy dealing with applications for deletion of information of various types, and the operating costs of internet companies will soar rapidly.
2. The internet market will tend to be conservative
If the right to be forgotten is a kind of privacy right, information that does not in-fringe the privacy of citizens or does not threaten the national security or the common interest can be arbitrarily transferred. If the right to be forgotten is a personal right to information, internet companies have to consider whether they affect the citizens’ information right in the process of promoting data collection, circulation, and integra-tion. In addition to complying with government regulations, they need to deal with citizens’ requests for information to be deleted from time to time. In this way, “no re-lease as a principle while release as an exception” will become a trend in the market, and the integrity and efficiency of information flow will be compromised. The oper-ating logic of the internet market will also tend to be conservative, thus impacting the market vitality.
3. National strategy will take a hit
Big data and cloud computing have become a major national strategy based on the truthfulness, integrity and reliability of the data. If the right to be forgotten is wide-ly used, many news reports, outdated events, etc. will be deleted. In big data analysis, it will deviate from the reality, and mistaken conclusions may be drawn.29 For in-stance, the national forecasters analyzed that Hillary Clinton was at an advantage in the presidential election based on the big data analysis. However, the analyses turned out to be wrong. The important reason is that the people surveyed were unwilling to express their true voting intention, leading to the untrue data. Many people support-ing Trump were not surveyed, leading to incomplete data and eventually deviation in forecasting results.
III. What Kind of Right to be Forgotten is Needed in China
Even if, as mentioned earlier, the internet will not store personal information forever and online platforms allow individuals to delete or apply for the deletion of personal information, the right to be forgotten is worth introducing, because the right to be forgotten is an important right to protect the personal privacy of citizens in the internet age. Moreover, in the process of localizing the right to be forgotten in China, consideration shall be given to China’s national conditions. It shall promote the pro-tection of personal information of citizens, without posing an obstacle to the develop-ment of the internet.
A. Privacy is the core condition in the system design
In terms of system design, the right to be forgotten should be considered as a privacy right. It shall not be regarded as the personal information right based on the difference between the right to privacy and the right to be forgotten. In fact, Europe and the United States disagree in defining the right to be forgotten. Europe regards it as the personal information right, while the United States takes it as a privacy right. This division stems from European Union’s embarrassing position in the internet market. European countries have neither large internet enterprises, nor key data dis-tribution centers, and so they are not participating in the development of internet stan-dards in the future. The large internet companies in Europe are all US companies. As the threshold for entering the internet market increases, Europe has gradually lost the ticket to compete in the internet sector. The European Union therefore aims to have a bigger say in the internet world by changing internet data collection rules through the right to be forgotten and other related systems.30 The United States defines the right to be forgotten as a privacy right because of its powerful internet companies. The United States does not want the right to be forgotten to become a constraint on the internet development, much less seeing the rules set by the European Union become the rules for US internet companies. It adopts a conservative attitude toward the right to be for-gotten.
The dilemma facing the European Union does not exist in China. The Chinese internet market is booming and is in healthy competition with the United States in different sectors. China has internet companies like those of the United States, as well as those without parallel in the United States. As a country that also needs to exert its power in the internet market and compete for a say, China should adopt the US model and regard the right to be forgotten as an important means of protecting citizen’s pri-vacy rather than as personal information right.
B. Personal information shall be defined in the contents
Both the US Internet Eraser Law and the EU General Data Protection Regula-tion are all geared to personal information.31 Thus, defining what constitutes personal information is vitally important for determining the scope of the right to be forgotten.
1. The information under the right to be forgotten is quasi-shared information
According to the degree of information openness, personal information can be divided into exclusive data, quasi-shared data, and shared data. Exclusive data are in-formation only for personal use, such as a private diary, individual statements and per-sonal letters. Quasi-shared data refer to personal information that is open to a certain extent and known by a certain group of people, such as office phone number, work email, and circle of friends. Every colleague in the company knows the work phone number and work email, while friends in the circle can know the information that is posted while external units or strangers have no access to the above information. The so-called shared data can be seen by anyone and are available in the online media, like everyone can see the undeleted photos and comments on the Weibo platform. The above three types of data may change in nature due to different circumstances. The shared data are instructed or authorized by the data subject and relevant data contents are made public. The shared information does not belong to the data under the right to be forgotten before the cancellation of authorization. For quasi-shared information, the data subject does not give authorization or instruction. If the relevant informa-tion appears on the information platform, it has an impact on the data subject and the data existence has no relevant legal basis. Therefore, the right to be forgotten can be claimed, requiring the platform to remove the relevant content.
2. The information under the right to be forgotten is valuable information
Why is personal data worth protecting? The fundamental reason is that it is a property, namely “individuals have ownership of their personal information and, like the owner of property, have the right to control the use of their personal information”.32 According to the value of information, personal information can be divided into valu-able information and worthless information. The so-called valuable information refers to information that has a material impact on personal wealth, prestige, status, etc. For
31. California passed the Eraser Act in 2013, demanding social media platforms including Facebook and Twitter allow minors to erase the traces of their surfing on the internet. pei Honghui, “US promotes the Eraser Act to Erase the Network Negligence of Minors”, Law and Life 1 (2014). According to the EU General data protec-tion Regulation, the data subject may require the controller to delete the personal data associated with them: (1) The purpose of searching for data has disappeared; (2) the data subject withdraws consent; (3) data controller opposes the use of data, and data controller has no legitimate reasons; (4) data controller uses data illegally; (5) deletion as required by law; (6) social service information related to minors. For example, if a person is listed as an untrustworthy person by the authorities, then his business will inevitably be affected. Such information is valuable information. The so-called worthless information refers to information that does not materially affect a person’s wealth, prestige, or status.
3. The information under the right to be forgotten is irrevocable information
Depending on whether it can be revoked, data can be divided into revocable data and irrevocable data. So-called revocable data refers to the data that can be unilateral-ly deleted by the data subject, and there will be no relevant content on the platform or on the internet. Irrevocable data refers to the data that cannot be thoroughly removed by data publishers, and the data removal requires the permission or cooperation of the platform. For data that can be deleted or revoked, the data subject can easily delete it without leaving a trace. Naturally, no right is endowed specifically for this. If the right to delete data is held by the platform or other search engines, a type of right is required to help individuals remove relevant information.
C. Differentiation should be made on the data subject in terms of specific implementation
The data subject has the right to require the controller to delete personal data associated with them without undue delay. However, in the specific implementation, the “data subject” and which group of people, enterprises, agencies or entities can be called the data subject shall be clarified.
1. Data owner and data stakeholders shall be differentiated
The so-called data owner has full ownership of the data, and the generation, use, processing and transmission of the data is subject to the consent of the data owner. The so- called data stakeholders refer to the persons involved in data content, but without ownership of the data. By differentiating data owners and data stakeholders, we can see the attitude of the European Union and the United States toward the right to be forgotten from another perspective. In the Google case in Spain, the personal information of the Spanish citizen González appeared in the news report in 1998. The plaintiff González is not the data owner but the data stakeholder. The European Court of Justice ruled against Google and in favor of the data stakeholders. In the United States, if you delete relevant information, there are few successful cases for the data stakeholders.33
2. Full owner and incomplete owner of data shall be differentiated
The full owner of data has the exclusive right over the full content of data and does not share the data with others; the incomplete owner of data does not fully mas-ter the data content. For example, a head portrait or selfie made public by a person online involves his or her personal information, and he or she has exclusive rights over the photo data; if this person makes public a group photo on the internet, then the persons in the group photo have certain ownership right over information contained in the photo. Distinguishing between full owner and incomplete owner of data aims to define the application scope of the right to be forgotten, and protect the integrity of content on the Internet. Incomplete owner of data who requires the online platform to delete the data may infringe the speech freedom of other data owners. At this time, the platform cannot delete data arbitrarily. Otherwise, the value of internet openness will be severely corroded.
3. Data creator and data processor shall be differentiated
The so-called data creator is the subject that creates the original data. The data processor is the subject who integrates, processes and treats the raw data. Differenti-ating the data creator and data processor helps define the deletion scope. Data creator is the source of the data. If the data creator requires the data to be deleted, processed data may be deleted at the same time. The data processor can only require deleting the processed data together with the source data, but does not have the right to require de-leting of source data.
D. The criminal field should not be forgotten in the scope of application
At present, the right to be forgotten discussed in the Chinese academic commu-nity is mainly concentrated in the civil and commercial fields, while there is little discussion about the right to be forgotten in the criminal sector. In fact, the right to be forgotten was originally targeted at the criminal sector, with the purpose that the facts corning the conviction and imprisonment of the offender are not made public after their released from prison.34 With the rise of the internet, the right to be forgotten has gradually become a key means to protect citizens’ privacy and safeguard the person-al information self-determination. The application in the criminal field is gradually weakened. In fact, it is more urgent to apply the right to be forgotten in the criminal field than civil and commercial fields in China.
In the judicial public campaign promoted by the Supreme People’s Court, the ruling documents, court videos, and court announcements go gradually online. Chi-nese citizens can learn about the announcement of the courts nationwide, the live broadcast court trials and browse ruling documents via the internet. Judicial openness is a key means to promote judicial reform, judicial credibility, and judicial authority, but some of the negative effects brought about by judicial openness are also obvious. On the one hand, it may not be conducive to the criminals leading a normal life. Some ruling documents disclose the name, age and registered household address and others information of offenders, and the appearance of the offender is revealed in the online broadcasting of court trials. The above information may exist on the internet for a long time. Even if the criminal leads a straight life, their past will be found online by those around the criminal, and the offender is labeled as a criminal, making it hard for them to lead a normal life. On the other hand, it may not help protect the participants in a lawsuit. Live broadcasting of court trials shows the Chinese courts in an all-round manner at different levels, including the parties concerned, statutory agents, agent ad litem, defenders, witnesses, appraisers and translators. This video material may not only violate the privacy of participants in the lawsuit, but also have an adverse impact on their future life and work.
Relevant legislation and policies are geared to the online platforms established by enterprises, organizations and individuals. The portals set up by state organs are not subject to the decisions, laws and guidelines. Therefore, neither the criminals nor the participants in lawsuits have the right to require the court to delete the information made public online by the ruling documents, nor have the right to ask the court to de-lete the live broadcasting video of court trial. The information on citizens revealed un-der the judicial openness practice is all-round, including personal identity information, and appearance characteristics and personal address. This information leakage is a far more serious matter than online information leakage. Obviously, the problem needs to be regulated by improved legislation.
(Translated by NI Weisi)
