Research On The Legal Issues Of The Right To Forgotten In The Data Age

This article first clarifies the social background of putting forward of the protection of the right to be forgotten and its legal structure in the era of big data.In this time,while enjoying convenience,people also face the risk of personal information being misused and uncontrollable.The risks brought by the era of big data to personal information protection include the risk of personal privacy leakage caused by "excessive interconnection" the risk of personal information collection and the use of personal information caused by "data misuse";the risk of user rights caused by "memory subversion".In order to strengthen the protection of personal information in the era of big data and protect the value to be forgotten in the traditional society from excessive erosion,which leads to the appearance of the right to be forgotten.The legal practice of the European Union shows that the right to be forgotten does not contain a clear conceptual content once it is established,and its connotation is constantly changing.It roughly includes the following three types:only for information released by its owner;extended to personal information legally released by a third party;integration of the concept of the right to be forgotten.In terms of legal structure,the right to be forgotten has the attributes of personality rights and also has certain attributes of property interests;the right to be forgotten has the dual essential attributes of "the right to be deleted and the right to be forgotten".In terms of legal relations,the subject of the right to be forgotten is limited to natural persons and legal persons and other organizations is excluded;the subject of obligations should include information publishers and providers who offer the service of searching information on the internet;the legal object should be the personality interests hidden in personal information.Which contains the value of freedom of information,the value of human dignity and the value of social justice.Although the design of the right to be forgotten system has the positive effect of improving the legal status of ordinary users,giving personal information more protection,and maintaining the value of being forgotten,there are also risks of infringement of social public interests and freedom of speech,and the impossibility to be deleted or to be forgotten and the high cost of doing it,as well as negative effects such as the misuse of network service provider’s power.The value of personal information protection pursued by the right to be forgotten may cause serious damage to other legal rights such as freedom of speech on the Internet,social public interests and so on.The conflict between the right to be forgotten and freedom of speech has three types of conflicts with data publishers,search engine service providers,and Internet users.The basic rights conflict measurement model can be applied to comprehensively use the right value hierarchy measurement theory and specific cases.The principle of benefit measurement is resolved.The conflict between the right to be forgotten and the public interest is essentially a conflict between personal personality interests and social fairness and justice.The principle of proportionality can be invoked to measure the interest between the right to be forgotten and the public interest.Regarding the foreign legal practice of the right to be forgotten,this article selects the European Union,the United States and Japan’s legal practice of the right to be forgotten to analyze the EU’s "active protection" model of the right to be forgotten;the US’s "negative protection" model of the right to be forgotten;Japan’s "neutral protection" model and the logic behind them.The logic of the balance of interests and protection of the right to be forgotten of foreign countries provides reference for our country including:reasonable guidance of the right layout in cyberspace in the era of big data;the degree of the protection of the right to be forgotten should be adapted to the actual situation of national economic and social development;further clarify the legal path for the protection of the right to be forgotten.On the issue of the localization of the right to be forgotten,this article first combs its current legal status,and finds that although our country has not established a system for the right to be forgotten,the deletion of personal information and other legal provisions can be the support to make the right to be forgotten our law.In terms of law,although there is no clear regulation on the "right to be forgotten",the right to apply for deletion has been set for the information subject,and the obligation of checking and deleting information has been established for the Internet information user.In terms of judicial practice,currently,the justice department avoided academic disputes over the legal character of the right to be forgotten,and switched to solving problems in practice from areas where legislation has been relatively mature;in terms of industry autonomy,major mainstream platforms basically have set some relevant rules referring to the their right to delete user information and the timeline of revering users’ information,and the right of users to delete personal information evaluated by themselves,and formed instructive self-restraint rules.Next,in terms of the choice of the path for the localization of the right to be forgotten,and whether the right to be forgotten in the era of big data can be protected,and protect it to what extent,which are the result of the balance between social public interests that different countries and regions made based on their respective social and economic conditions.Directly introducing into the EU model of the protection of the right to be forgotten will face risks such as hindering the healthy development of our country’s big data information industry,increasing the risk of misuse,the technical level cannot be reached,and the conflict of interest is difficult to coordinate.Therefore,we should not completely choose the EU-style protection path for the right to be forgotten.The protection of the right to be forgotten in my country needs to be defined in scenarios and types.For example,the parties can be given different types of rights to be forgotten according to different sources of personal information."Strong control mode" means that individuals have the right to delete irrelevant,outdated,and unnecessary information published by themselves."Weak control mode" means that individuals have no right to delete personal information reprinted by others,or people’s remarks related to personal information,and search engine links to such information,but it is legally public negative information for violations of privacy,can request to restrict the disclosure and use of past negative data of the information subject in a specific field.In the supporting mechanism for the localized legal construction of the right to be forgotten,a special personal information protection agency should be established and improved as the subject of the implementation of the right to be forgotten;the state can fulfill its obligation to protect citizens’ personality rights and information rights by balancing interests.