China Justice Observer

中国司法观察

China's First Right to Be Forgotten Case

Sun, 21 Feb 2021
Categories: Insights

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According to Ren v. Beijing Baidu Netcom Science and Technology Co., Ltd. (2015), China’s first right to be forgotten case, Chinese courts are currently not supportive of claims by Internet users to have their personal information deleted.

I. Typical significance

In December 2015, a Chinese court rendered a final judgment, holding that the plaintiff's request to delete its search results from the search engine Baidu lacked sufficient legal basis, and thus rejected the plaintiff's claims. In the judgment, the Chinese court stated that with the knowledge of the EU’s right to be forgotten case, the current Chinese law didn’t provide legal ground for similar claims.

II. Basic information

Appellant (plaintiff in the first instance): Ren Jiayu 

Appellee (defendant in the first instance): Beijing Baidu Netcom Science and Technology Co., Ltd (北京百度网讯科技有限公司)

Case type: reputation dispute

III. Facts of the case

The plaintiff has a high reputation in the fields of education and management. He used to work for a biotech company, but he left it long ago.

As one of China's largest Internet companies, the defendant has been operating baidu.com, China’s main search engine.

The plaintiff found that regarding a search for his name, Baidu would recommend a "related search" that combined his name and the biotech company’s name as keywords for other users to click.

The defendant stated in the "must-read before using Baidu" section at the bottom of Baidu's webpage that if a user meets the following two conditions, he/she may require Baidu to delete the search results, namely: (1) a right holder finds that a network user infringes his/her legitimate rights and interests by using network services; and (2) Baidu's search engine system links to the content of a third-party website by way of automatic search, which infringes the legitimate rights and interests of the right holder. 

The plaintiff emailed the defendant to ask for the deletion of the relevant search results, but the defendant claimed that it had not received the email.

Subsequently, the plaintiff filed a suit before Haidian Primary People’s Court of Beijing Municipality, demanding that the defendant immediately stop the infringement of his rights to name and reputation, i.e., delete the relevant search results, and compensate for the loss.

According to the defendant, its search service is technically neutral, legitimate and reasonable, so the search results objectively reflect the users’ search status and the Internet information situation. The search results show that the plaintiff worked for the biotech company, which is true, so the defendant did not infringe on the plaintiff's rights to name and reputation. 

IV. The Courts’ opinions

1. Court of first instance

Given that Baidu’s "related search" is based on the search habits of other users and the calculation of the correlation degree with the current search terms, the court of first instance considered that there was no human intervention of the defendant in the "related search" service changing the algorithm or law for the relevant information of Ren Jiayu.

In the search results, the combination of the names of the plaintiff and the biotech company into keywords is an objective reflection of the plaintiff's employment history.

Since the search engine automatically counts the frequency of search keywords entered by all online users during a "specific reference period", the aforementioned keywords will still appear in the "related search", even though the plaintiff has left the company. If users continue to perform such a search, it causes the aforementioned keywords to appear in the related search, which can not indicate the defendant’s intention to infringe.

The court held that the law prohibits the use of insults, defamation, and other means to damage the reputation of citizens, but the defendant's search results did not support such facts, thus having not violated Ren Jiayu's right to reputation. Besides, the appearance of the plaintiff's name in the "related search" was only an objective reflection of users' search using the plaintiff's name. Obviously, there was no interference, misappropriation or counterfeiting of his name.

The court took the view that there is no specific type of right called "right to be forgotten" in current Chinese law. Although the defendant's search results contained content that affected the plaintiff, the information was neither false nor illegal, so the plaintiff had no right to have the information "forgotten" (deleted).

Accordingly, the court of first instance rejected the plaintiff's claims.

2. Court of second instance

The court of second instance found that the right to be forgotten is a concept formally established by the European Court of Justice through judgments. Although the Chinese academic community has discussed the localization of the right to be forgotten, there is no legal provision on the "right to be forgotten" in the current Chinese law. The plaintiff did not fully justify the right to be forgotten and the need for protection in this case. Therefore, the court rejected its claims on the right to be forgotten.

Furthermore, the court also agreed that as to the presence of the plaintiff's name in the search results, it was not the illegal use of his name but an objective display of keywords entered by the defendant's users. The defendant's search results were free of false content and were not insulting or defamatory.

Therefore, the court of second instance upheld the judgment of the trial court, by rejecting the plaintiff's claim that the defendant should delete the search results.

 

Contributors: Guodong Du 杜国栋

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