遗忘与记忆之间——被遗忘权本土化的法理思考

Between Forgetfulness and Memory——A Jurisprudential Reflection on the Localization of the Right to Be Forgotten

互联网时代,数据呈现出个体价值与公共价值的双重属性,各价值维度间此消彼长的对立关系愈演愈烈。单向信息控制权的权利表象之下,被遗忘权背后蕴含着宏观社会利益判断,契合了数据自由流动的趋势。被遗忘权除发挥法律权利价值外,更是信息技术空间中各国信息主权争夺的推手、利益博弈的延伸。作为一种迥异于传统集中模式的分散式规制手段,被遗忘权预设了专断的监管与审查逻辑,运作逻辑有违自由理念。但其与言论自由的冲突并非不可调和,二者博弈始终围绕"公益"与"私益"的平衡,存在价值理念的交集。比例原则可作为被遗忘权与言论自由动态平衡的可行路径。被遗忘权本质为兼具实用性与调适性的利益权衡框架,并非问题的终结状态。我国存在被遗忘权制度构建的现实土壤,若将其本土化,值得引入的是其冲突解决功能,而非价值偏好。

In the Internet era, data presents the dual attributes of individual value and public value, and the antagonism between each value dimension has become increasingly fierce. Under the appearance of the right of one-way information control, the right to be forgotten contains macro social interest judgments, which fits the trend of free data flow. In addition to exerting the value of legal rights, the right to be forgotten is also an extension of the competition for information sovereignty and interests in the information technology space. As a decentralized regulatory method that is very different from the traditional centralized model, the right to be forgotten presupposes the arbitrary supervision and review logic, and the operation logic violates the idea of freedom. But its conflict with freedom of speech is not irreconcilable. The game between the two always revolves around the balance between "public good" and "private benefit", and there is an intersection of values. The principle of proportionality can serve as a feasible path of the dynamic balance between the right to be forgotten and free speech. The right to be forgotten is essentially a framework of trade-offs of interests that is both practical and adaptable, not the end of the problem. There is a realistic soil for the establishment of the right to be forgotten in China. If it is localized, it is worth introducing its conflict resolution function, not its value preference.