iStock_000042592376_IllustrationIn May 2014, in a decision attracting worldwide attention, the European Court of Justice (ECJ) held that a European individual’s privacy rights include the “right to be forgotten,” requiring Internet search engine providers to honor an individual’s request to remove certain search results relating to him or her. Specifically, individuals may request deletion of links to information that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

Since the ECJ’s 2014 decision, initiatives to curtail the Internet’s long memory about individuals’ histories have arisen in other continents. In Asia, South Korea has recently embraced a limited form of the right to be forgotten, while a court in China struggled with whether to recognize the right.

South Korea’s Guidelines on Requests for Access Restrictions on Internet Self-Postings

As of June 2016, website operators and Internet search engine providers in South Korea are expected to voluntarily cooperate with guidelines issued by the Korea Communications Commission (KCC) on a form of the right to be forgotten. The KCC released the non-binding “Guidelines on Requests for Access Restrictions on Internet Self-Postings” on April 29, 2016, in response to intense interest in the matter within the country following the ECJ ruling. Operators of websites with user-contributed content and operators of web search engines may receive requests to remove or exclude information relating to individuals.

The KCC indicated its intent to strike a balance in the guidelines between protecting an individual’s privacy rights and protecting freedom of expression. The guidelines are meant to address a gap that is not covered by existing remedies (e.g., under copyright law for unlawful reproduction of information, the Press Arbitration Law for erroneous reporting or the Information Network Act for posts infringing a third party’s rights). The specific concern that the guidelines seek to address is the situation where an individual has “lost control” over content that he or she posted to an Internet site (“self-postings”), such as when a user of a service has cancelled his or her membership to the service but the content remains available on the service.

Under the guidelines, an individual who would like to remove online self-postings should first attempt to delete the content. If he or she is unable to delete the content, the individual may request that the site administrator restrict access to the materials. The request to remove or exclude content should include the URL of the material to be removed, proof that the requestor posted the content and the reason for removing the content. The site operator may request additional information if the request contains insufficient proof to determine that the requestor posted the content, and the site operator may thereafter deny the request if the additional information provided is still insufficient.

Upon removal of the content, the site operator should inform third parties of the removal by publishing a note in place of the removed content that access to the content has been restricted. A third party may appeal the removal of content by providing the website operator with both evidence that he or she authored the content and a reason for reinstating it. Additionally, a requestor who misrepresents another person’s post as his or her own in order to have it removed may be subject to civil and criminal penalties.

The individual may also request Internet search engine operators to exclude the content from search results, although it is unclear whether the individual must have originally published the content to be excluded. As a result, the rights afforded to individuals under the KCC guidelines appear to be more limited in scope than the broad rights recognized under the ECJ’s decision.

The KCC’s press release and a copy of the guidelines are available (in Korean) can be found here.

China Rejects the Right to Be Forgotten, at Least for Now

In contrast to the formal—albeit voluntary—regime that has just taken effect in South Korea, the right to be forgotten does not yet appear to be recognized in China. This is so notwithstanding the recent efforts of a plaintiff seeking to convince a Chinese court to import the right from Europe into China. Indeed, a summary of the case posted by the Haidian District People’s Court in Beijing expressly acknowledges the ECJ’s May 2014 ruling.

The case involved a plaintiff seeking to compel a search engine to remove results that related to him. In its ruling, the court concluded the plaintiff had no right to be forgotten. The plaintiff, Ren Jiayu, sued the search engine Baidu after a search on his name pulled—in the “related searches” section on the bottom of the results page—various references to Ren and Taoshi Education Company. Ren was apparently associated with this company in the past, but the company was in ill repute (“many people believed that Taoshi Education was a dishonest company, with some going so far as to claim it was an evil cult,” explained the Beijing court of first instance in its ruling, according to a recent report on these developments). Ren’s employment with Beijing Daoyaxuan Commercial Trading Company Limited was terminated as a result of the association, and he then sued Baidu seeking lost wages and the elimination of a number of keywords from search results for “Ren Jiayu,” including “Taoshi Education Ren Jiayu.”

In other words, Ren sought a ruling that a Chinese individual’s privacy rights include a right to be forgotten, similar to that of European individuals, which would require Baidu to honor his request to remove search results information relating to him.

Ren argued that the “related searches” terms should be removed in part because he had no prior relationship with the offending company. The court, however, found that he did, and thus concluded that there was no infringement of Ren’s right to his reputation. The court also rejected any claim that Baidu had infringed on Ren’s right to his name. Then, the court turned to whether there could be a new right to be forgotten within the framework of the “general right of personhood” under Chinese law.

The court first noted that, even though there was a right to be forgotten in other countries, including countries of the European Union, that jurisprudence would not inform the court’s decision.

The court then identified three criteria for the right to be forgotten under Chinese law: the personal interest at issue must (1) encompass a right not already categorized; (2) be legitimate; and (3) require the protection of law.

The court acknowledged that Ren had an interest in having the information “forgotten”—it had an adverse impact on his employment prospects—but this interest was not “legitimate and requiring the protection of law.” As the court put it, the search results “relat[e] to very recent events, and [Ren] continues to work in the business administration education profession. This information happens to form a portion of his professional history, and his current individual professional credibility is both of directly relevant and of ongoing concern.”

In short, while the Chinese court appears to have concluded that there is no such thing as a right to be forgotten, the case could also be read to suggest that there was no such right based on the facts of this case but that it is plausible that some other individual’s interest in having search results removed could be found to be legitimate and require the protection of the law.

An article (in English) describing the case and providing links to the rulings (in Chinese) can be found here.

Although the right to be forgotten has not yet taken force in any way in China, the door remains open for further efforts to establish the right. And although the right currently exists only in nonbinding guidance in South Korea, this guidance highlights the growing interest in Asia in what could ultimately become one of Europe’s hottest exports.

 

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For other Socially Aware blog posts regarding the right to be forgotten, please see the following:

A Right to Be Forgotten Update

European Court of Justice Strengthens Right to Be Forgotten