The Construction Of The Right To Be Forgotten In Our Country

In the era of big data,the memory mechanism of the Internet has overturned the balance of "memory and forgetting".Memory has become the norm,and forgetting has become the exception.The right to be forgotten is born in such a context.It aims to give the information subject the civil right of "being forgotten by the network",and requires the information controller to delete the information related to himself on the network.Because the right to be forgotten itself contains the personal interests of protecting the natural person to obtain social understanding and maintaining personal dignity,the value of the right to be forgotten in the network era is increasingly prominent.From the perspective of comparative law,the European Union took the lead in establishing the right of forgetting through the general data protection regulations,and the right of forgetting finally realized the "magnificent transformation" from theory to practice.Since then,Russia,Japan,Italy and other countries have followed up and established the right of forgetting with local characteristics.The United States and Europe have different values and national interests,so they are indifferent to the right to be forgotten,but they have also passed relevant laws and regulations to protect citizens' information security with the legislative spirit of the right to be forgotten.In terms of legislative paradigm,the EU has formulated a unified personal information protection law and established a special data protection agency to protect it.The difference is that what the United States adopts is the legislative paradigm of separate industry legislation,which focuses on industry self-discipline and does not set up a special information regulatory agency.As far as the legislative elements are concerned,the scope of subjects of rights,obligations and objects given by the EU is far larger than that of the United States.Although there are theoretical researches on the right of forgetting in China,there is no legislative provisions on the right of forgetting.Personal information legislation lags behind,which is not conducive to China's participation in global Internet competition and conforms to the trend of the times.The lack of personal information legislation in China urgently requires us to pay attention to the right to be forgotten.To construct the right of being forgotten in China,we should adhere to our own national conditions,learn from the successful experience of foreign countries,and construct the right of being forgotten with Chinese characteristics that can stand the international horizontal comparison.As a new civil right,the right of forgetting is bound to conflict with freedom of speech,the right of the public to know and the national public interest,but this conflict is not a "zero sum game",which can be eliminated by using the principle of comparison.The right of forgetting belongs to the right of self-determination of information in nature.It is different from the right of privacy,and it is difficult to be covered by the right of privacy,so it does not belong to the right of privacy.In the right structure,the right subject of forgetting right should be limited to natural person rather than legal person,while the obligation subject can be extended to legal person or other organizations.The object of the right to be forgotten shall include all information related to the subject matter disclosed.The content of the right of forgetting is related to the information subject's right of remedy before and after the event.In terms of the scope of the right of forgetting,China's legislation should follow the general situation of EU's application of the right of forgetting,and stipulate the opposite exception to prevent the situation of "one mistake and another mistake".At the same time,the scope of application of the right of forgetting should be extended to minors in order to strengthen the special protection of minors' information.There are two legislative approaches to the right of being forgotten in China.The first is to make full use of the resources at hand.On the one hand,the right of forgetting can be stipulated in the general principles of civil law.After the civil code is published,it can realize seamless docking and reflect the value of civil code advancing with the times.On the other hand,the right of forgetting can be stipulated in the tort liability law to improve the content of the tort liability law.The second is to formulate a new personal information protection law.Compared with path one,it can protect personal information more comprehensively and effectively,and at the same time,it can avoid the disadvantages of forgetting right being included in the general principles of civil law,general principles of civil law and tort liability.