Research On The Localization Legal Structure Of The Right To Be Forgotten

In the era of big data,the depth,breadth and efficiency of information collection,storage,analysis and utilization are more subversive than before,and it brings many conveniences to our life in the aspects of basic necessities of life.But at the same time,we cannot ignore the new problems arising from this--"data eternity" and "privacy transparency".To deal with this threat,the EU creatively proposed the "right to be forgotten" system in 2012.In contrast,China has the largest number of Internet users in the world,and the protection of personal information is more urgent than that of the eu.Moreover,in judicial practice,the general protection mode of personality right proposed by the presiding judge of the first case of the right to be forgotten in China cannot effectively fill the omission caused by the lack of legislation.On the one hand,this model does not delay the argumentation logic of the legitimacy and necessity of the legal protection of the personality interests of the right to be forgotten.On the other hand,it is against the nature of the specific personality right to be forgotten to include the forgotten right into the category of general personality right.Facing the increasingly severe situation of personal information protection,in order to effectively protect the personal dignity and free development of information subjects,China needs to learn from the mature experience of the EU and choose a feasible path to realize the localization of the right to be forgotten.As a new right,the right to be forgotten should be based on its nature,type,architecture and function.The subject of the right to be forgotten can only be a natural person,while the subject of the obligation can be a natural person,a legal person or other organizations.It should be included in the category of personality right because of its strong personality dependence and its main purpose is to protect the personal dignity of the information subject.Secondly,through the analysis of China's existing legislative resources and social soil,the feasibility of localization of the right to be forgotten is demonstrated.Although China's current legislation does not directly stipulate the right to be forgotten,the related provisions are numerous.Moreover,the urgent demand of Chinese people for the right to be forgotten,the practice of Internet companies for the right to be forgotten and the operability of the right to be forgotten in technology all indicate that there is a deep social soil for the localization of the right to be forgotten in China.Thirdly,the conflict of interest in the right to be forgotten should be properly solved based on the principle of proportion.The right to be forgotten emphasizes the control of the information subject over personal information and strictly restricts the information controller's collection and processing of personal information.Therefore,it is in conflict with the interests of freedom of speech,national security and information controller.It is advisable to examine the four sub-principles of the principle of proportion in order to gradually bridge various conflicts of interest.Finally,the author puts forward the concrete conception of localization of the right to be forgotten.At present,the legislation of the right to oblivion is mainly divided into two types: unified and decentralized,but both of them have shortcomings.China should base on its own legislative tradition and the status quo of the development of trade associations,and adopt the advantages of both to choose a comprehensive legislative model.Among the elements of the legal relationship of the right to be forgotten: the subject of right should pay attention to the special consideration of public figures,state workers and minors,and the subject of obligation should be limited to information controllers;The personal information of the object of right can be classified by type.The scope of application of rights can be divided into three typical scenarios: information subject's active release,others' reprint and others' active release,and the exceptions are freedom of speech,public interest and litigation needs.In the genealogy of personality rights in China,the right to be forgotten is a positive right with negative characteristics,the object of the right is personal information,and the power is mainly independent of personal information.Therefore,it is different from the right to privacy and should be placed in the category of personal information right.In addition,special data protection institutions should be set up to enhance citizens' awareness of exercise of rights and strengthen self-discipline awareness of Internet enterprises,so that the right to be forgotten can really play a practical role in China.