A Study of the Criminal Right to be Forgotten  In the Context of We-Media

Author: Wenhan Shi

Abstract: The criminal right to beforgotten originated in the cultural soil of personal information protection inEurope, and has aroused extensive discussions and explorations around theworld. Technological innovation has led to the arrival of the era of we-media, which has profoundlychanged people's way of life and ways of obtaining information. Thecommunication mode of we-mediahas empowered the future prospect of the criminal right to be forgotten with“digital intelligence”, but co-existing problems such as data disorder, dataexplosion and algorithmic hegemony have also brought a new round of challengesto the protection of criminal personal information. The application of the rightto be forgotten in criminal cases requires a delicate balance between theapplication of the right to be forgotten and the value of traditional criminaloffense control, it should also be carefully weighed against the conflictingboundaries of the right to be forgotten in criminal matters and the freedom ofthe press and the public's right to know, as well as the issue of valueranking.

Keywords: criminal right to beforgotten; we-media; personal information protection; criminal record sealing

In the age of big data, powerful cloud-based storage capabilitiesand search engine technology can accurately store and access vast amounts ofcase information and personal information. “With the help of widely prevalenttechnologies, forgetting has become the exception, while remembering has becomethe norm.”[1] Among the variousinformation dissemination channels, we-media develops most rapidly. Weibo,WeChat, TikTok and other kinds of information dissemination and socializationplatforms are rapidly rising, and there is a significant and essentialdifference from the early 21st century when traditional news media was stillthe main front of information release. This makes us think about whether, inthe context of we-media, parties to criminal proceedings, including defendantswho have been found innocent, the criminals who have been convicted andpunished, the victims who have been hurt, and even witnesses, should have theright to be forgotten once they are involved in criminal proceedings.

I. The Concept and Connotation of the Criminal Right to beForgotten

a. Traceability: the origin anddevelopment of the right to be forgotten

France is one of the birthplaces of the concept of “beingforgotten”, which is rooted in the French cultural background of emphasizingpersonal privacy. The concept of the “right to be forgotten” was proposed anddiscussed in the French Senate in 2009 in the Bill on the Guarantee of PrivateLife in the Digital Society. The bill proposed a number of specific measures torealize the right to be forgotten digitally (droit àl'oubli numérique), but it was not adopted at the time. Subsequently, in 2010,two charters on the Right of Digital Oblivion were adopted and the right to beforgotten was institutionalized in France.

The “right to be forgotten” is an extension of the right toprotect personal information. The rapid development of information technologyhas given birth to the rise of the Internet industry, which has also broughtabout a sharp increase in the demand for and attention to the protection ofpersonal information. European countries have introduced laws and regulationsto protect the right of the information subject to request the information controllerto delete their own personal information under certain conditions. In 2016, theEuropean Union formally passed the General Data Protection Regulation (GDPR),in which the right to be forgotten is explicitly stipulated in Article 17, andthe influence of the right to be forgotten has been further expanded sincethen.

Unlike the rapid development ofthe right to be forgotten in Europe, the concept of the right to be forgottenhas been “cold” in the United States. The reason is that the US believes that freedom ofspeech and the freedom of the press have a higher priority than personalprivacy. The First Amendment to the U.S. Constitution prohibits the U.S.Congress from enacting any law restricting the freedom of speech or the freedomof the press, establishing the absolute dominance of the freedom of speech andthe freedom of the press in the United States. However, influenced by thelegislative trend in Europe, coupled with the increasing demand for personalinformation protection in the era of big data, there are social groups andexperts and scholars in the U.S. calling for legislation on the right to beforgotten. Under the influence of these ideas, in 2013, the State of Californiapassed Bill No. 568, also known as the “Eraser Bill”, which requires Internetservice operators to allow minors registered on their websites to delete orrequest the operators to delete the information they have posted. However, thescope of restriction on the content of rights provided in the Act is verynarrow, as it applies only within a single state, the subject of the rights islimited to minors, and the deletion of content is limited to content posted bythe minors themselves, while information about themselves posted by others isnot covered by the right of deletion.

The protection of the right tobe forgotten by the Japanese courts has oscillated between freedom ofexpression and the right to privacy due to the impact and influence of bothEuropean and American ideological trends. In Japan, a man filed a lawsuit to removereports of his arrest for the offense of patronizing a minor, three years afterhis sentence had been served, but a search of his name or address on a searchengine still publicly showed his conviction and criminal record. The districtcourt granted his request, arguing that after a certain period of time,offenders have the “right to have their past crimes forgotten” by societybecause they have “an interest of being ‘a new person’ in a calm onlineenvironment,” and that deleting the search results would be less burdensome forboth parties. The plaintiff's request was supported because the deletion of thesearch results would impose less burden on both parties and would help toremedy the right quickly and effectively.[2] However,his request was ultimately rejected by the Tokyo High Court. It can be seenthat Japanese academics have a theoretical outlook on the right to beforgotten, but remain cautious about its application in practical cases.

b. Connotation and theoretical basis of thecriminal right to be forgotten

In short,the “right to be forgotten” refers to the right of the information subject torequest the publisher or controller of the information to delete relevantinformation, and the right to be forgotten in criminal matters is theembodiment of this right in the criminal field. For example, the Rehabilitationof Offenders Act 1974 enacted by the United Kingdom stipulates that after acertain period of time, a guilty verdict with a sentence of less than 30months' imprisonment is regarded as “spent”, and the Japanese Penal Code alsosets a time limit for a criminal verdict according to the severity of thecrime. The Japanese Penal Code also sets a time limit for the “expiration” of acriminal sentence based on the severity of the crime, and these provisionsreflect the application of the right to be forgotten in the criminal field. Theright to be forgotten in criminal matters is mainly used to achieve thefollowing three effects: firstly, the criminal record of the offender issealed; secondly, the materials of victims, witnesses and other participants incriminal proceedings are sealed; and thirdly, parties to criminal proceedingshave the right to request the deletion of news reports and publicly availablecase documents pertaining to them.

Theconcept of the right to be forgotten in criminal matters stems from theinherent requirements of retributive punishment. According to the principle ofappropriateness of crime and punishment, the offender's criminal act has beenfully punished after examination and prosecution, trial and execution, and itis not fair to examine him or her through the so-called criminal record at thistime, because no one should be tried or punished twice for the same act or thesame crime. For victims and witnesses, they have the right to forget theirpainful and unpleasant experiences, and they should not be victimized twice, oreven multiple times, for the same incident.

Basedon the protection of special groups, China has now established a system forsealing the criminal records of minors, and the establishment of a system forsealing records of minor crimes has also been discussed. In the context ofwe-media, whether the voice of public opinion will end with the sealing ofcriminal records, and whether there should be supporting measures to protectthe right to be forgotten in addition to the sealing of some of the criminalrecords by the judicial authorities, is a topic worth exploring.

II. The Impact of the Characteristics ofthe We-Media Era on the Setting of the Criminal Right to be Forgotten

Existingresearches have vaguely realized the realistic demand for the right to beforgotten in the era of we-media, however, they have not studied and exploredthe paths and characteristics of criminal information dissemination in depth inthe context of we-media, and based on these new paths and characteristics tostudy the right to be forgotten in criminal matters.

a. Disordered data due to we-mediadissemination methods

Sincethe 21st century, there are three main ways for the media to participate in thenetwork era: firstly, news portals, which themselves are news publishers;secondly, navigation sites and search engines, which summarize and filterinformation released by other media that users need; and thirdly, socialplatforms with users as content creators, i.e., we-media. It can be said thatwe-media is increasingly becoming an important source of information for younggroups and even all Internet users.

Thelogic of information dissemination in the era of we-media is different fromthat in the era of traditional media and portals, and it brings new challengesto the criminal right to be forgotten: firstly, the news is disseminated at arapid pace. We-media users have not received professional journalism trainingand education in journalism ethics, and the contents published are not verifiedby professional organizations and professionals; at the same time, due to thelimitation of personal ability, the information published by we-media tends tobe superficial and fragmented. The logic of information flow lies in thecompetition of speed and sound volume, in order to gain clicks, rumors may begenerated, or some criminal information that should not be known by the publicspread rapidly on the network. Secondly, the main body of the news release isdecentralized. News release is no longer dominated by traditional media, andeveryone can become a news publisher, which makes it difficult to determine thesubject of information responsibility. It is even more difficult to realize therequest of the parties to criminal proceedings to the data controller to deletethe relevant reports in the age of we-media.

b. The challenge of data explosion to thetraditional sealing method

On theone hand, today's society has entered the era of data explosion, thedissemination of data is an exponential growth, which has intensified thedifficulty of criminal information "being forgotten". Industrydiversification and the increasing pressure of employment competition haveprompted more and more people into the media industry. On the other hand, theinformation dissemination channels are diversified, information exchange on thenetwork is not only limited to the “posting” behavior, but also various formssuch as post, comment and bullet screen.

Inaddition, data dissemination is uncontrollable. Once the information isreleased, it will be out of the control of the publisher, seen by anunspecified majority of people, and added to the underlying database of theplatform operator, who becomes the actual manager of the information. Whatcannot be ignored is that even if the publisher only publishes the informationon the platform for a specific group and audience, it can also be stored andmanaged by search engine companies because of the powerful crawler function ofthe search engine, and the search engine company can also store and manage theinformation. Even if the we-media deleted the information, the information willstill be retained because of reprinting, search engine records and other means.Therefore, we-media platform operators and search engines have an importantinfluence on the criminal information dissemination path.

c. Technical innovation and algorithmic“hegemony” brought by algorithms

Inrecent years, algorithmic push technology has become the object of developmentfor we-media platforms. Algorithms can process massive amounts of informationwith “digital intelligence” and combine the user's personal characteristics toachieve accurate push. Algorithm-controlled information pushing may bringinformation cocoon and emotional radicalization. Algorithmic technologydetermines what kind of content can be “seen”, that is, what people callalgorithmic “hegemony”. The essence of algorithmic push is to precisely senddifferent content to groups that may be interested in it, improving theefficiency of information distribution and exposing users to homogenizedinformation in the long term. In real life, it is often seen that there iswidespread dissemination and discussion of various criminal cases on theInternet. Under the precise push of algorithmic technology, extreme views mayappear, and even the phenomenon of driving Internet emotions.

III. Boundary Conflict of Criminal Right tobe Forgotten in the Context of We-media

Fromthe moral level, “forgetting” can make human beings erase unpleasant andunfavorable memories, so as to obtain inner peace, and then let go of the pastand start afresh. However, compared with the paper era, we-media has changedthe memory mechanism of the society, which makes “forgetting” a difficultproblem. Therefore, we need to explore the boundaries of the criminal right tobe forgotten in the context of we-media.

a. Conflict between the criminal right tobe forgotten and traditional criminal crime control values

In thetraditional basic criminal value, the disclosure of criminal records is ofgreat significance for accurate conviction and sentencing and effective crimecontrol. In the context of we-media, the original balance between theprotection of personal information and the mechanism of “forgetting” in thepaper era has been broken, so people have begun to discuss the “right to beforgotten”. However, whether the protection of personal information isover-emphasized or under-emphasized, or the right to be forgotten isover-emphasized or ignored, both may lead to an imbalance in the basic criminalvalues. Therefore, the right to be forgotten in criminal matters should betreated with caution. The application of the criminal right to be forgotten isthe result of a weighing of legal interests. According to the principle ofproportionality in the narrow sense, the right to be forgotten can only beapplied when the legal interests harmed by sealing the personal information ofthe offender are far less than those of safeguarding the public security ofsociety. Crimes against national security, crimes of terrorist activity,organized crime of a triad nature, sexual crimes, drug crimes and other crimesthat are highly organized, socially harmful and have a high likelihood ofrecidivism should not be included in the scope of application of the right tobe forgotten in criminal matters.

b. Conflict between the criminal right tobe forgotten and freedom of the press

In theage of we-media, everyone has the opportunity to be the publisher anddisseminator of information. When reporting and disclosing information oncriminal cases, without affecting the judgment and understanding of the case,it is not appropriate to overly publicize the vicious modus operandi andspecific details of the case that would cause greater harm to the partiesinvolved in the case. It is worth mentioning the famous “Su-won case” in SouthKorea. The case was widely reported and adapted into a movie, which drew publicattention to the issues raised by the case, but it was also a “double-edgedsword”. With the release of the rapist Cho Doo-soon, the victim So-won was onceagain subjected to netizens' discussions and speculations, and the details ofthe sexual assaults were brought up time and time again, which was againhurtful to the victim and her family. If the right to be criminally forgottenis passed to restrict individuals from posting information on the Internet, theright to be criminally forgotten may have an impact on the freedom of thepress, which in a way means that the right to freedom of the press is limitedin the criminal field. [3]Inthe context of we-media, freedom of the press can still constitute an exceptionto the exercise of the right to be forgotten in criminal matters, but it isworth exploring and studying to what extent it is reasonable and legitimate forpeople to discuss criminal cases.

c. Conflict between the right to criminaloblivion and the public's right to know

Thetheoretical basis of the criminal right to be forgotten comes from theprotection of personal information. In the context of we-media, it will not bemarked with a "permanent imprint" due to information explosion ordisorder, which can not be removed like a "tattoo", which isconducive to a better return to the community and return to normal life. Asmentioned earlier, algorithmic technology can not be ignored, but at the sametime, digital technology can also make a difference in the criminal right to beforgotten. The platform should optimize the algorithmic model to avoid theemergence of extreme emotions of netizens. Also, the boundaries of the right tobe forgotten must be defined on the basis that the public cannot be deprived ofthe right to know. Not all personal information is private and should beprotected by the right to privacy, personal information has personal attributesas well as public attributes, and if the public attributes of personalinformation are greater than the personal attributes, then the balance of thelaw should favor the protection of the public's right to know, and the right tobe criminally forgotten should not be abused.

CONCLUSION

Theright to be forgotten, which began with the protection of personal privacy, wasestablished as a legal concept in France and has developed rapidly in Europe.The essence of this conception is that the information subject requests thatthe relevant personal information not be disseminated under certain conditions,and the criminal right to be forgotten is the embodiment of criminal records orinformation in this system. Different countries hold different attitudestowards this right, such as wait-and-see, prudent application and strictrestriction.

Therapid development of information technology, especially the rise of thewe-media, has made it easier than ever to obtain and disseminate personalinformation, and at the same time has made it easier for special information,such as criminal records, to be more widely discussed. This undoubtedly breaksthe balance between the public's right to know and the legal protection ofpersonal privacy under the traditional media, making the criminal right to beforgotten a legal and even social issue worth thinking about.

Facedwith the conflict between the right to be forgotten in criminal matters and thetraditional value of criminal law, freedom of expression and the public's rightto know, it is important to balance the interests of all parties by taking intoaccount the protection of the public interest and the interests of theindividual. So as to optimize the protection effect of the legal system, weshould not only maintain social security and stability, but also give peoplewho have been "led astray" a chance to return to normal life.

[1] See Viktor Mayer Schönberg, Delete: The Virtue of Forgetting inthe Digital Age, translated by Yuan Jie, Zhejiang People's Publishing House,January 2013 edition, p. 6.

[2] SeeSaitama District Court Judgment of June 25, 2015, and Judgment of December 22,2015, Case Times 2282, pp. 78, 83

[3]Zheng Xi, “The Right to Be Forgotten in the Criminal Domain in the Era of BigData,” Journal of Seeking Justice, Vol. 44, No. 6 (Nov. 2017), p. 100.