The Study On The Boundary Of The Right To Be Forgotten

In response to the risk of being permanently remembered in the age of big data,the right to be forgotten was born.The right to be forgotten began to be implemented and developed worldwide after the dual confirmation of the "Spain Gonzalez case" of the European Court of Justice and the judicial and legislative Article 17 of General Data Protection Regulation in 2014.However,the case has also aroused controversy,the boundary of the right to be forgotten needs to be clarified.On one hand,the boundaries of the right to be forgotten,the right to privacy,the right to personal information and the right to delete need to be clarified.On the other hand,the right to be forgotten conflicts with the social public interests such as freedom of speech,freedom of the press and the right to know,and the boundary of the exercise of the right to be forgotten needs to be clarified.For the first aspect of the right to be forgotten boundary issues.Firstly,in terms of privacy and the right to be forgotten.Through the analysis of the judgment result of the "Spain Gonzalez case" in the European Union,finds that the information regulated by the right to be forgotten is the information that has been made public on the basis of legality,while the object of the right to privacy is the private information that has not been known and made public by others.The right to be forgotten is a right of claim and relative right,whose boundary is different from the right to privacy as a specific right of personality.Secondly,the right to personal information and the right to be forgotten.Through the analysis of different legislative modes of personal information protection in Europe and America,finds that personal information protection sets data rights such as informed consent right,correction right and deletion right for the information subject in the multi-link of information processing.The right to be forgotten does not adjust the entry and process of information,but only creates an information export mechanism aimed at deleting specific information.The right to be forgotten falls into the category of the right to personal information.The right to personal information is a new right,and the right to be forgotten is a sub-right under it.The boundary of the right to be forgotten is narrower than the right to personal information.Thirdly,the right to delete information and the right to be forgotten.Through the analysis of the legal text of Article 17 of GDPR,finds that there are two kinds of information deletion cases mixed in this article.The right to delete is to request the deletion of data that has no legal basis for processing or to delete it in accordance with the explicit provisions of the law.The right to be forgotten aims to request the deletion of the data retained in the network domain on the basis of legality.There is a conflict of rights,and it needs to be measured by interests.Further analysis of the legal origin behind the two,behind the right to delete is information self-determination and self-control.The legal interests protected by the right to be forgotten are personal freedom,personal dignity,personal equality and social public interests.The boundary of the two rights is different.For the second aspect of the right to be forgotten boundary issues.To discuss the boundary of the exercise of the right to be forgotten from the practical perspective.First of all,from the perspective of litigation and non-litigation,the exercise of the right to be forgotten will lead to great conflicts between the individual rights of the information subject and the value of the free flow of information,freedom of speech,the public’s right to know and other social public interests.The only way to resolve the conflict is to measure the interests.Secondly,by summarizing the review of Google and the court,a set of interest measurement rules for judging whether the information subject can enjoy the right to be forgotten are summarized.The interest measurement rules generally include three major aspects: the type of information source website,the social role of the information subject and the specific content of the information.Information controllers and courts use the above interest measurement rules to judge individual cases,and there are different trade-offs and tilts between individual rights and social public interests.Then,it is found that the particularity of the right to be forgotten lies in that it is not the subject of the right to decide how to exercise their rights,but the information controller will assume the judgment responsibility like the court to review the information and dispose the information according to the review result.When the information controller has the right to review and decide,the boundary of the exercise of the right to be forgotten is delimited by it.It can be seen that the essence of the right to be forgotten is to what extent the society chooses to forgive,tolerate,forgive and forget the specific information and the right of the information subject after a certain period of time.In the context of the right to be forgotten,the value pursuit of the right should be to seek the balance between social public interests and personal interests.Therefore,the information controller grasps the core concept of "de-correlation",according to the rule of interest measurement and the principle of proportionality,and takes different technical means of "decoupling" degree to process the specific information according to the specific situation.Deletion is only the last measure.In this way,the boundary of the exercise of the right to be forgotten can be better described in individual cases,and the realization of the balance of interests can be boosted by technical means.Based on China’s national conditions and legislative and judicial considerations,the system of the right to be forgotten should not be fully developed in China at the present stage,and the introduction field and the exercise boundary of the right should be temporarily restricted,the field of credit investigation and the name list system of persons subject to enforcement for trust-breaking should be taken as the experimental field of the right to be forgotten so as to have the basis and possibility to conform to the future legislative trend.