Privacy Protection in the Big Data Era: Judicial Renewal of the Right to be Forgotten Institution of PRC

Abstract

The Right to be Forgotten, serving as a traditional leniency right, assumes an increasingly pivotal role in upholding democratic values and maintaining order in the era of big data. Nevertheless, the Personal Information Protection Law does not acknowledge this right, but merely stipulates the Right to Delete, assigning it a singular attribute of private law. From a legal theoretical perspective, the Right to Delete corresponds to instrumental value, emphasizing 'control' and inheriting the attribute of public law; the Right to Be Forgotten aligns with normative value, stressing 'communication' and 'dialogue', and possessing an attribute of private law. Functionally, the prevailing Right to Delete essentially amalgamates the aspects of deletion and forgetfulness, thereby failing to fully harness the combined efficacy of both. It is recommended to adopt a path of judicial reconstruction, formulating a system for the Right to Be Forgotten that caters to China's indigenous needs within the framework of Article 47 of the Personal Information Protection Law. In individual case adjudications, the applicable contexts for the Right to Be Forgotten, as well as the execution and safeguards of forgetting measures, should be explicitly identified across three dimensions of logical argument and evidence, by imposing limitations on purpose and necessity. This approach would facilitate the realization of the normative articulation of the Right to Be Forgotten. In the era of big data, the establishment of the Right to be Forgotten legal institution will serve as a powerful guarantee for the effective implementation of privacy protection technologies.