The Right to Be Forgotten in China——A Third Way to Construct Public Sphere

Abstract

The right be forgotten has aroused widespread concern since its first appeared in the cornerstone case of Google vs. Spain. For the right to be forgotten, one seemingly irreconcilable conflict is with the value of the freedom of expression, which would be further characterized as a matter of public interest. Therefore, for both European Union and the United States, the underlying problem of how to reconcile the right to be forgotten with freedom of expression is to distinguish public and private sphere. While the EU is in support of the idea to enhance individuals’ control over personal information, the U.S. stance shaped by the newsworthiness has created a ubiquitous and robust public sphere. These two approaches have their intrinsic deficiencies for they provide either too excessive or too narrow protection for the public sphere. In the meantime, China has also made great leap forward in the protection of personal information. After exploring the current legal frameworks and cases of the right to be forgotten in China, this article argues that the current right to be forgotten in China provides a third way to distinguish the public and private sphere, which applies neither EU way nor American idea. The right to be forgotten in China is constructed in the context of rejecting the traditional distinction between the public and private spheres. In a reductive manner, Chinese law has outsourced the justifications for forgetting or deleting to current laws, regulations and agreements. In essence, China attempts to formulate the public sphere from the expectation of both individual and community by balancing various interests behind the personal information.