Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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Beijing’s First Intermediate People’s Court held that the right to personality, as guaranteed by China’s Tort Law, offered protection to a person’s right to privacy in a similar way to the “right to be forgotten”. The case concerned Ren Jiayu, who requested that the Haidian District People’s Court order a Chinese search engine to remove “related search” suggestions that he thought harmed his reputation and caused him to lose work. The Court accepted that one could be granted the “right to be forgotten” and have information de-indexed from search results provided he/she had a legitimate personal interest that needed to be protected. In this case, Ren Jiayu failed to satisfy this test since the information he wanted to de-index was still relevant to his current occupation.
Baidu is a Chinese search engine. When one enters search terms into its search bar, Baidu provides a list of search results as well as a list of “related search” suggestions. The latter list is automatically generated on the basis of their association with the searched term, and the frequency at which people search the related terms.
On March 12, 2015, Ren Jiayu’s working relationship with the Beijing Daoyaxuan Commercial Trading Company Limited was terminated because of Baidu’s “related search” suggestions. These suggestions linked Ren Jiayu to Taoshi Education, a company that had a reputation of being dishonest and was considered by some to be an evil cult.
Ren Jiayu sued Baidu, seeking compensation for lost income resulting from the termination. He also wanted Baidu to de-index his name from six “related search” suggestions. Ren Jiayu argued that he never worked for Taoshi Education and, because his name was associated with the company in a “related search” suggestion, it harmed his reputation. He brought his complaint on the ground that Baidu was infringing his right to reputation, right to name, and right to personality.
The Beijing First Intermediate People’s Court (Court) divided its analysis into two parts. First, it considered the factual question of whether the impugned search suggestions were generated with the help of any human interference on the part of Baidu. The second part of the analysis focused on the question of law – whether Baidu’s “related search” suggestions infringed on Ren Jiayu’s right to name, right to reputation, and right to personality.
Concerning the question of fact, the Court held that there was no evidence of any human interference in generating the six “related search” suggestions that Ren Jiayu wanted to de-index. The Court added that since there was no human interference, Baidu did not have any “specific intent” to harm Ren Jiayu. Then the Court moved on to the question of law.
The Court began by reviewing the claim that Ren Jiayu’s reputation was harmed. The Court noted that the “related search” suggestions did not have any judgmental implications, and were merely reference terms indicating their usage in online information retrieval. During the course of the proceedings, the Court also established that Ren Jiayu had worked with Taoshi Education, and that proof of this relationship could be found online. Therefore, the Court found that the “related search” suggestions did not defame or insult Ren Jiayu but, instead, objectively reflected his work history. Thus, the Court dismissed his claim to an infringement of the right to reputation.
The Court then moved on to consider whether Ren Jiayu’s right to name was violated. The right to name was defined as the right to prohibit third parties from interfering with, misappropriating or “passing off” someone else’s name. The Court established that “related search” suggestions were automatically generated to produce a string of characters in response to a search term “Ren Jiayu”, and were not directed at any specific individual. Thus the “Ren Jiayu” in a “related search” suggestion did not constitute a protected name.
Lastly, the Court considered whether Ren Jiayu’s right to personality was violated. Specifically, the Court considered whether the “right to be forgotten” existed as part of the right to personality under China’s Tort Law. The Court explained that foreign law or jurisprudence is not binding in China. It then went on to state that the right to personality protects a person’s personal interests, and that a three-part test could be relied on to determine whether an interest not already defined in Chinese law falls within the right to personality:
Concerning the first part of the test, the Court had already established that the “right to be forgotten” did not exist in China’s legal framework (it was a foreign legal concept). As for the second criterion, the Court found that Ren Jiayu’s legal interest could be legitimate since the “related search” suggestions had potential to directly affect him by harming his professional reputation and his ability to work. The Court, however, found that on this occasion the interest in having the information removed was not legitimate and therefore did not require the protection of the law.
First, the Court highlighted that an assessment of whether an association with a certain company negatively affected one’s reputation, it had to consider the relevant company’s reputation. It found that such an assessment was subjective, and inappropriate for the Court to make. Furthermore, the Court noted that it was not a long time ago that Ren Jiayu worked with Taoshi Education, and he continued to work in the same sector. Under these circumstances, the information of his relationship with the company was still relevant to his professional credibility, and his potential customers might want to learn about his work history and qualifications. The Court then assessed whether Ren Jiayu fell within a protected class of persons requiring special protection of their personal information. The Court ruled that he did not fall within any such class. For example, he did not work at Taoshi Education when he was a minor or of limited/no competence.
On the basis of the above, the Court dismissed Ren Jiayu’s complaints against Baidu.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome. The Court established a precedent in support of the position that the “right to be forgotten” falls within the right to personality under China’s Tort Law. It could, therefore, be used for the purpose of de-indexing search results and other forms of information online which could result in serious threats to freedom of expression. On the other hand, in this case, the Court expanded freedom of expression by recognizing the public importance in being able to establish an individual’s professional history through search engine results.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.