The Beijing No.1 Intermediate People’s Court recently refused to recognise that there is a “right to be forgotten” under Chinese laws. However, the fact that this issue was expressly raised and discussed in the Chinese court highlights that litigants and courts in China have kept themselves apprised of data privacy developments elsewhere in the world. And while recognising that this “right to be forgotten” is not expressly provided for under Chinese laws, the Chinese court seemed to have left open the possibility of offering some kind of protection if the circumstances justify it. This is a rapidly changing area and we may see more judicial discussion on this issue in the future.
The facts are relatively simple. In a nutshell, the claimant (a teacher) filed this lawsuit to request a major Chinese search engine to remove autocomplete search words showing or suggesting that he was previously employed by a particular education service company (his former employer). He complained that his former employer had a bad reputation and the availability of these search words had caused damage to his name and reputation. He asked for the information “to be forgotten”.
Court’s reasoning and decision
The Court considered that the gist of the case was whether the search engine had damaged the claimant’s rights to his name and reputation, and whether there was a more general “right to be forgotten” under Chinese laws as argued.
On the first question, the Court found that the autocomplete search words did not infringe the complainant’s rights to his name and reputation, mainly for the reasons that: (1) the search words were objective factual descriptions and were not defamatory; and that (2) the search words were developed automatically based on web users’ query rate and search frequency, and were not created or controlled by the search engine.
The Court could have stopped here and dismissed the claim. However, interestingly, the Court went on to discuss the claimant’s plea for a right “to be forgotten”. The Court expressly acknowledged that this concept of right to be forgotten was a creature of the EU court jurisprudence and that there had been discussion among the Chinese academics as to the importation of this right into China. However, the Court recognised that this right to be forgotten is not provided for or categorised under Chinese laws. As a general rule, if a person seeks protection of some kind of personal rights which are not explicitly provided for under Chinese laws, the person must be able to show that such personal rights are legitimate rights and are necessary for the law to protect.
Here, the Court found that the claim for a right to be forgotten had failed these two criteria. The Court considered that the claim was essentially asking the Court to make a verdict that the claimant’s former employer had a bad reputation, which the Court was not in a position to do so. Also, the Court considered that the claimant was effectively trying to conceal his prior employment information to his potential students or clients. The Court’s view was that it is in the interest of the public (including the claimant’s potential students and clients) to have such information available.
Differing from the situation in EU, the right to be forgotten is denied in the US for conflict with the right to freedom of speech.
We have kept a close eye on the Chinese legislative and judicial developments on personal information protection.