Monday, May 16, 2016

An Overview of China's First "Right to be Forgotten" Lawsuit

On May 4, 2016, the Haidian District People's Court in Beijing published an article on its website entitled "Haidian Court Completes Investigation in Nation's First Case of 'Right to be Forgotten'" (海淀法院审结全国首例“被遗忘权”案) Some excerpts:
Recently the Haidian Court concluded a case involving a lawsuit filed by Plaintiff Ren against a certain Internet Services Company for infringement of the right of reputation, name, and general personality.  On May 13, 2014, a European court issued a final judgment confirming that ordinary citizens have a "right to be forgotten" with respect to personal information, and following that the European Union has established the scope of a "right to be forgotten." During the two year period following the European court's recognition of the "right to be forgotten," the Haidian Court has concluded proceedings in the first case involving the scope of judicial protection of the "right to be forgotten" for a citizen's personal information. This case study has significant theoretical and practical value with respect to the issue of how China will conduct regulatory development and judicial practice to safeguard the "right to be forgotten" for personal information in the Internet age.

Mr. Ren's work related to various fields in the area of administration education, such as human resources management and business administration. Beginning on July 1, 2014 he performed educational work in those areas for a company in Wuxi. On November 26, 2014, that technology company issued a "Notice of Automatic Termination" to Mr. Ren, terminating the parties' labor relationship. A certain Internet service company was a commercial provider of search link services such as web page search and related search.

It is unclear why the announcement refused to use the full names of the parties involved, particularly given that at the time the full text of both the decisions of the lower court and the court of appeals were available online without any of the parties' names being redacted. See:
Screenshot of the Ren Jiayu Court of Appeals Decision on
 According to the text of the court judgments, the parties implicated were:
  • Ren Jiayu (任甲玉), a designer and engineer born in 1972.
  • Beijing Baidu Network Data Technology Company Limited (北京百度网讯科技有限公司)
  • Taoshi Education (陶氏教育)
  • Beijing Daoyaxuan Commercial Trading Company Limited (北京道雅轩商贸有限公司)
The following summary is based on the text of the court of first instance judgment, which was subsequently confirmed by the appellate court.

Ren Jiayu sued Baidu because:
Beijing Daoyaxuan Commercial Trading Company Limited (Party A) and Ren Jiayu (Party B) negotiated a mutually agreed voluntary formal termination of their labor agreement relationship to take place on March 12, 2015, with the termination grounds being, after Party A hired Party B on a trial basis, it was discovered that "Wuxi Taoshi Education Ren Jiayu" was appearing online on Baidu, and that many people believed that Taoshi Education was a dishonest company, with some going so far as to claim it was an evil cult. Because Party A required that the work performed by Party B be beyond reproach, both parties voluntarily terminated the contract. 
Ren Jiayu not only wanted Baidu to compensate him for the income he lost as a result of the termination of the labor contract, he also wanted the court to grant him injunctive relief against Baidu, specifically:
When entering "Ren Jiayu" into the Baidu search interface and conducting a search, the following six keywords shall not appear in the search results:
  • Taoshi Ren Jiayu
  • Taoshi Super Study Method
  • Super Fast Study Method
  • Super Study Method
  • Taoshi Education Ren Jiayu
  • Wuxi Taoshi Education Ren Jiayu
As the court put it, Ren Jiayu had two specific requests:
First, directly or indirectly confirm that a company he had previously collaborated with, "Taoshi Education," did not have a good professional reputation, and second, attempt to conceal, at least on the Internet, his work history from potential students and education cooperation clients.
This is probably a good point to pause and understand exactly what Ren Jiayu was objecting to. Ren did not claim that the "keywords" in question were appearing in Baidu's "organic" search results. That is, the listing of titles and snippets that generally take up the bulk of the space on a search result page.

Ren was objecting to what Baidu refers to as "Related Searches" (相关搜索). In the screenshot below the "related searches" for "Xi Jinping" are outlined in red.

 The court characterized Baidu's "Related Search" functionality this way:
Baidu's so-called Related Search Terms are automatically generated by the search engine based on entry statistics for terms with a relatively high usage frequency over a given period of time and the searched words that were related to them.
Ren believed he was entitled to relief in connection with the "Related Search" results displayed by Baidu because, according to him:
[He] never held a job at the Taoshi Education Company, and had never posted any information online about "Taoshi Education Ren Jiayu," "Wuxi Taoshi Education Ren Jiayu," etc., and because Taoshi Education is the subject of controversy, infringing information such as  "Taoshi Education Ren Jiayu" and "Wuxi Taoshi Education Ren Jiayu" has caused extreme harm to [his] reputation.
The court stated that the central question in this dispute was:
Does Baidu's current technical model for "Related Searches" and the related service model constitute an infringement of the rights being advocated by Ren Jiayu in his lawsuit.
The opening sentence of the court judgment states that Ren had brought suit against Baidu for:
[I]nfringement of the right to reputation, right to name, and the general right to personality.侵犯名誉权、姓名权、一般人格权。
In addressing Ren's claim, the court considered one question of fact and one question of law:
  • Question of Fact: Were the terms displayed by Baidu's "Related Search" service that referred to Ren Jiayu subject to any human interference?
  • Question of Law: Did the technology model of Baidu's "Related Search" and the search service provided by the related service model constitute an infringement of Ren Jiayu's right to name, right to reputation, and the so-called "right to be forgotten" within the ordinary right to personality advocated by Ren Jiayu.
  • 百度公司“相关搜索”服务显示的涉及任甲玉的检索词是否受到了该公司人为干预?
  • 百度公司“相关搜索”技术模式及相应服务模式提供的搜索服务是否构成对任甲玉的姓名权、名誉权及任甲玉主张的一般人格权中的所谓“被遗忘权”的侵犯?
The court did not explain the relevance of the question fact, and simply found that there was no evidence of any human interference, and that it was therefore not possible that Baidu had any "specific intent" with respect to Ren Jiayu.

Moving on to the question of law, the court found that the six terms that Ren Jiayu had complained were infringing "did not either on their face or in fact have any judgmental implications, and in and of themselves were merely reference terms indicating their usage in online information retrieval." (本身并无表面及实质性的褒贬含义,本质仍属供网络信息检索使用之参考词汇). Furthermore, Ren apparently did in fact have a prior relationship with Taoshi Education, as the court found:
Based on Ren Jiayu's statements in court, he did in fact engage in actual commercial collaboration with Taoshi Education which was publicized in the media, and that commercial collaboration and publication information was being reflected on the Internet. 
Given that it had already been established that Ren Jiayu did in fact have a prior relationship with Taoshi Education, the appearance of those terms was "an objective reflection of the history of Ren Jiayu's educational work with enterprises associated with Taoshi." (任甲玉从事与陶氏相关企业教育工作的历史情况的客观反映。)

The court therefore rejected Ren Jiayu's claim of infringement of his right to reputation:
Seeing as there exists neither a situation where words are being used to insult, nor a situation where facts are being fabricated to defame, it is clear that there exists no infringing act of insult or defamation with respect to Ren Jiayu. Therefore the aforementioned circumstances of Baidu's Related Search clearly does not constitute an infringement of Ren Jiayu's right to reputation. 
The court similarly rejected Ren Jiayu's claim of infringement of his right to name, which the court described as the right to "prohibit third parties from interfering with, misappropriating, or passing off as" one's own name. The court held:
Given that there has been no action by Baidu implicating human intervention in the "Related Search" terms regarding "Ren Jiayu," and nothing was specifically directed at a specific individual, then as regards something mechanical like "Related Search," the process whereby the relevant algorithm gathers and process the three characters "Ren Jiayu" is merely combining a string of characters, and does not constitute a meaningful name.  
Having established that Ren Jiayu had no claims for the protection of any commonly recognized rights of personhood, the court turned its attention to whether or not a new "right to be forgotten" should be recognized as existing within the broader framework of the ”general right of personhood" (一般人格权). The court first clarified that foreign law would not form the basis of its decision:
China's law as it exists today is unable to define a category of rights that is the so-called "right to be forgotten." The "right to be forgotten" is only touched upon in foreign statutory and case law, which cannot serve as the legal basis for China's protection of this kind of right. 
The court defined three criteria for determining whether such a right could be found  within China's own Tort Law:
The right to personhood or general right to personhood protects the subject's personal interests, and encompasses both those personal interests that have already been categorized as legally defined rights, as well as those legitimate legal interests that have not been so categorized but which should receive the protection of law. With respect to the latter, the following three criteria must be met simultaneously: they must not encompass those rights which have already been categorized, and they must be rights which are both legitimate and which require protection.
The first criteria was met because, as noted earlier, the court had found that the right that Ren Jiayu was asking the court to protect in this case was not covered by existing rights such as the right to reputation or the right to name.

As for the second and third criteria, the court found that Ren Jiayu arguably did have an "interest" in this case, because there was potentially a direct connection between Ren Jiayu and the information that he wanted "forgotten," to the extent that it could have an adverse impact on his professional reputation, which in turn could jeopardize his ability to recruit students and enjoy other employment opportunities and economic interests.

The court held, however, that Ren Jiayu's "interest" in having information "forgotten" was not "legitimate and requiring the protection of the law."
It is inappropriate to make an abstract assessment of whether a company's reputation is good or bad, or the cause-and-effect relationship a company's reputation may create. Furthermore there is also the latent competitive relationship between Ren Jiayu and Taoshi Education's affiliated enterprises given their operate in identical or closely-related professions. As regards the latter, the information at issue in this lawsuit regarding Ren Jiayu's work history relates to very recent events, and he continues to work in the business administration education profession. This information happens to form a portion of his professional history, and his current individual professional credibility is both of directly relevant and of ongoing concern. Ren Jiayu hopes to make use of his own good reputation in the industry to attract customers and students going forward, but information about his personal qualification is important information that customers and students rely on in making a judgment. Ren Jiayu's collaboration with Taoshi Education affiliated enterprises did not occur at a time when he was a minor or a person with limited or non-existent competence, and there existed no other legal basis for providing special protections to him as a member of a special group. 

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

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