价值与实践:英语学界“被遗忘权”研究

Value and Practice: a Study of the Right to be Forgotten in English

近年来,伴随着学界对大数据的关注,域外英文学术期刊中比较集中地发表了一批研究"被遗忘权"的成果,时间跨度从2009年至今。分析发现,这些研究有以下三个主要特征:第一,对"被遗忘权"的含义及来源达成基本共识:它是数字时代的一种隐私权,意为网络用户有要求数据控制者删除有关其个人信息的权利,是一种反悔权、信息的自我决定权。这一权利来源于欧洲一些国家法律中已经承认的通常是有犯罪前科的人拥有的避免其犯罪经历被公开的"被遗忘权"或"遗忘权"。其二,学者们既认识到其对保护大数据环境下个人隐私的重要性和价值,也提出了其在司法实践中可能遇到的具体实施问题以及导致的负面效应。其三,"被遗忘权"最初源自于欧洲,美国对其接纳不甚积极,主要是由于宪法《第一修正案》对言论自由和新闻自由给予的无例外式保护,但并不是说"被遗忘权"在美国就无任何发展可能,一些学者给出了美国适用该权利的理由。本文将对这些研究的主要内容进行阐述,并对"被遗忘权"理论和司法实践中最具争议性的问题提出补充性看法。

In recent years, with the attention of the academic circle paid to big data, a number of research results on "the right to be forgotten" have been published in English academic journals abroad, which span from 2009 to now. Through analysis, it is found that these studies have the following three main characteristics: first, they have reached a basic consensus on the meaning and the source of "the right to be forgotten": it is a kind of privacy right in the digital age, which means that network users have the right to request data controllers to delete their personal information, and it is a right of repentance and the self-determination of information. This right is derived from "the right to be forgotten" or "the right to forget", which was generally recognized in the laws of some European countries for people with a criminal record to avoid having their criminal history disclosed. Secondly, scholars not only recognize the importance and the value of it for privacy protection in the big data environment, but also put forward the specific implementation problems and negative effects that may occur in the judicial practices. Third, the United States is not very active in accepting "the right to be forgotten" that originated in Europe, mainly because the First Amendment of the Constitution gives protection for the freedom of speech and the press without exception, but is not to say that "the right to be forgotten" could not develop in the United States. Some scholars have given reasons for the application of this right in the United States. This paper will research on these main contents and give supplementary opinions on the most controversial issues of the theory and judicial practice of "the right to be forgotten".