个人信息保护中删除权的规范构造

郭春镇; 王海洋

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January 2023

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Citation: Chunzhen GUO and Haiyang WANG. Normative Structure of the Right to Erasure in Personal Information Protection[J]. Academic Monthly, 2022, 54(10): 92-106. shu

Normative Structure of the Right to Erasure in Personal Information Protection

Abstract

Article 47 of Personal Information Protection Law of China clearly stipulates the right to erasure of personal information, which is highly similar to the EUʼs right to be forgotten in content, but they are obvious different in value orientation, the object of obligations, and triggering conditions and so on. The right to erasure is not a component of the right to claim personality right, but an conditional procedural right based on personal information processing behavior, which is triggered by the failure of the information processor to perform the obligation of deletion. The exercise of the right to erasure must be based on the legal situation as stipulated in Article 47(1) of the Personal Information Protection Law and satisfy the principles of legality, legitimacy and necessity. Information processor should take the initiative to delete personal information under statutory circumstances. If the information processor does not delete it, the information subject has the right to request the information processor to delete it; If the information processor refuses to delete it without proper reason, the information subject can file a lawsuit. Whether the right to erasure is realized needs to be based on current technology. Its implementation is not limited to the substantial deletion of personal information in non-electronic records and small systems, but also includes the imposition of restrictions on the future existence of personal information pocessed on a large scale, making it ultimately in a state that cannot be retrieved, accessed or identified.
- Personal Information Protection Law,
- the right to erasure,
- the right to be forgotten,
- the conditional procedural right.
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沈阳化工大学材料科学与工程学院沈阳 110142

Normative Structure of the Right to Erasure in Personal Information Protection

Chunzhen GUO
Haiyang WANG

Available Online: 2022-10-20

Abstract: Article 47 of Personal Information Protection Law of China clearly stipulates the right to erasure of personal information, which is highly similar to the EUʼs right to be forgotten in content, but they are obvious different in value orientation, the object of obligations, and triggering conditions and so on. The right to erasure is not a component of the right to claim personality right, but an conditional procedural right based on personal information processing behavior, which is triggered by the failure of the information processor to perform the obligation of deletion. The exercise of the right to erasure must be based on the legal situation as stipulated in Article 47(1) of the Personal Information Protection Law and satisfy the principles of legality, legitimacy and necessity. Information processor should take the initiative to delete personal information under statutory circumstances. If the information processor does not delete it, the information subject has the right to request the information processor to delete it; If the information processor refuses to delete it without proper reason, the information subject can file a lawsuit. Whether the right to erasure is realized needs to be based on current technology. Its implementation is not limited to the substantial deletion of personal information in non-electronic records and small systems, but also includes the imposition of restrictions on the future existence of personal information pocessed on a large scale, making it ultimately in a state that cannot be retrieved, accessed or identified.

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