Abstract

The right to be forgotten is a civil right of the data subject that aims to require data controllers to delete personal data that can be legally deleted on the internet so that it can be“forgotten”by the internet.The role and significance of the right to be forgotten in protecting the personality interests of civil subjects is getting more and more attention.The most fundamental reason is the rapid development of the internet and big data，which makes ordinary natural persons who are the data subject to have nowhere in the face of the impact of the internet and big data.“Memory”becomes eternal，and“forgetting”seems to be less likely.In this context，the protection of personality interests carried by personal data has become an important issue in civil law or personal data protection law.

From a comparativelaw perspective，the right to be forgotten originated in Europe.It was recognized for the first time in the case of the 2014 Google-González which was made by the European Court of Justice，and the EU’s 2016“General Data Protection Regulation”made official legislation.The legislature of the rights to be forgotten by the EU has caused heated debates around the world.Countries have different attitudes towards the right to be forgotten，and many countries maintain their acceptance or optimism.Russia quickly passed The Right To Be Forgotten Act，Japan recognized the right to be forgotten in the form of judicial precedents.The attitude of the United States to the right to be forgotten is relatively negative，because there are differences in the concept of rights，legal traditions，as well as competitions based on their business interests and even their national interests between the United States and EU.

The right to be forgotten as an emerging civil right，whose attributes of rights can be proved by the theoretical support of jurisprudence and civil law dimensions.In the jurisprudential dimension，the right to be forgotten is an emer ging right.According to the logical theory of benefits—legal interests—rights，the path of benefits to rights and the paths of interest measurement，the attribute of the right to be forgotten as a right should be revealed.In the course of development of interest-to-right path，personal data，as the bearing of personality interests of data subjects，contains the most basic values of freedom，dignity，and fairness.The personality interests contained in personal data should be the legal benefits of legal protection.This is the fundamental reason why the right to be forgotten should be recognized by law and protected by law.The path of interest measurement provides the thinking of legal application for the right to be forgotten in judicial practice.The EU judicial precedent confirms that the right to be forgotten is actually the result of measurement of interest.From the aspect of the novelty of rights development，the data subject’s hope of being forgotten is the result of the self-determination of the data subject based on his personal autonomy on his personal data.This kind of personality autonomy is the internal reason why the right to be forgotten of the data subject becomes a right.At the same time，the right to be forgotten is also in line with the formal standards of the emerging rights in space and time，and the substantive standard of emerging rights based on the expansion or reduction of the scope of the object of right.Thus，the right to be forgotten in the jurisprudential dimension can be proved.

In the dimension of civil law，the right to be forgotten should be positioned as a specific category of personality rights in the context of civil rights.The personality interests contained in personal data reflect the simple values of natural law such as freedom，dignity and fairness，and determine that these personalities should be respected，well treated，and protected.Based on this concept of civil law，the right to be forgotten is not a property right and should not only belong to the category of personality rights，but also belong to the category of specific personality rights.In the specific category of personality rights，although the right to be forgotten and the right to privacy have certain origins，the right to be forgotten should not be defined as the right of privacy in view of different social and historical backgrounds，different subjects，objects，and content of right.What is most closely related to the right to be forgotten is the right to personal information.Judging from the existing legal provisions in China，the right of personal information as a specific civil right has not actually been officially confirmed.In theory，the right to be forgotten is within the scope of personal information rights，and the right of personal information has the framework right characteristics.This kind of framework right has three features：it has ambiguity and needs to be measured through the interests to determine the illegality of its infringement and it has complementarities to traditional rights，therefore，to examine the right to be forgotten by virtue of the framework right of personal information rights，it may be desirable to separate the right to be forgotten from the right to personal information and treat it as a specific and independent civil right.

From the perspective of the rights structure system or the legal relationship，the subject，object，and content of the right to be forgotten should be formulated.The subject of the right to be forgotten should be limited to natural persons，including the fetuses and those who have died，while legal persons cannot currently be the subject of the right to be forgotten.The definition of the obligatory subject of the right to be forgotten determines the scope of the subject performing the deletion obligation as well as the tort liability.Based on the background of the internet and big data，the scope of the obligatory subjects is mainly the data controller of the source web page and the search engine service provider.The object of the right to be forgotten is the personality interest contained in personal data.Since personal data has the identifiability related to the data subject and the dual nature of property and personal right，the personality interests of the data subject are based on personal data.China’s future“Personal Data Protection Law”can learn from the EU’s“General Data Protection Regulation”and make a general enumeration of special categories of personal data，and adopt a hierarchical model to regulate its data processing behavior at different levels.For the data subject，the content of the right to be forgotten is the right to request the deletion of personal data，and may also include the right to request the data controller to restrict the personal data processing in a specific situation；for the data controller，the core obligation that should be performed is to delete personal data.In addition to this，the law should also impose data controllers to perform notification obligations to inform other data processing actors.

The law grants the data subject the right to be forgotten，but it does not mean that there is no boundary in the exercise of the right to be forgotten.In general，countries set their specific conditions of application and limitations in accordance with their national conditions.As far as China is concerned，the data subject may exercise the right to be forgotten where one of the following grounds applies：the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed；the data subject withdraws consent on which the processing is based；the data subject objects to the processing；the personal data have been unlawfully processed；the personal data have to be erased for compliance with a legal obligation to which the controller is subject；personal data processing involves special protection of minors.At the same time，the data subject may not exercise the right where one of the following grounds applies：for the legal exercise of official authority by public agencies；for the archiving purposes in the public interest；for exercising the right of freedom of expression；for the exercise of official obligation given to the controller；for the need for litigation.Public interest as one of the restricted situations in which the right to be forgotten is exercised requires the definition of the scope of public interest，which should cover the public interest in the public health field，the public interest in archiving，scientific，historical or statistical purposes，and the public interest in national security，social security，education development，etc.In the judicial application，the exercise and restriction of the right depend on the measurement of interest，and public interest and freedom of speech are particularly important in this respect.When there is a conflict between the right to be forgotten and public interest，the judge can invoke the principle of proportionality to measure the interest between the institutional interests of the right to be forgotten and the public interest.When there is a conflict between the right to be forgotten and freedom of speech，the benefit can be measured comprehensively based on the identity of the data subject，the nature of the personal data，and the performance of the data processing behavior.

If data controllers are indolent to fulfill their obligations of deletion，they infringe upon the right to be forgotten，and should assume tort liability.The principle of attribution of liability of the tort liability is the core issue of infringement of right to be forgotten.Whether it is the principle of fault liability or the principle of no-fault liability，it is not conducive for the parties to distribute burden of proof.The principle of no-fault liability is too harsh on the data controllers，and the principle of fault liability cannot effectively restrain the data controllers.The principle of fault-presumption responsibility can compromise the value objective of attribution of liability，and it also meets the mainstream trend of data protection law in the world.Therefore，the principle of liability attribution of the tort liability about the right to be forgotten should adopt the principle of presumption of fault liability.Based on the principle of fault presumption of responsibility，the correspondence theory of causal relationship and the rule of inversion of proof responsibility should be adopted.

The right to be forgotten is absent in the current legislation of our country.The absence of the system has also brought obstacles to the judicial application.The development of the internet and big data and the trend of the world’s personal data protection legislation have determined that China should pay attention to the right to be forgotten.Therefore，it is necessary to carry out system design for the right to be forgotten through legislation.The construction of the right to be forgotten system in our country focuses on the establishment of the right to be forgotten as a specific civil right in legislation.The specific ideas can be considered from two levels of civil law and personal data protection law.At the civil law level，three paths can be designed.One of the ways is to improve on the basis of Articles 110 and 111 of the“General Rules of the Civil Law”；The second path is to improve on the basis of Articles 2 and 36 of the Tort Liability Act，and to enforce the limits of damages and the rule of inversion of proof responsibility to improve the relief mechanism；the third path is to set a separate right to be forgotten clause in the future“Civil Code”，which is the most ideal solution.Constructing the right to be forgotten at the level of personal data protection law is a very convenient model.In the future“Personal Data Protection Act”，the right to be forgotten shall be systematically structured and overall designed from the basic principles of personal data processing，the rights of data subjects，the data controller’s obligations，regulatory agencies，relief methods and legal responsibilities.At the same time，an independent data monitoring agency should be established，the self-discipline of internet companies should be strengthened，thereby forming a comprehensive system for the construction of the right to be forgotten.