数智时代下中国刑事被遗忘权主体的法治困境及纾解对策

Rule of Law Dilemmas and Countermeasures to Relieve the Subjects of the Right to Be Forgotten in Criminal Matters in China in the Age of Digital Intelligence

In the age of digital intelligence, the subject of the right to be forgotten in criminal matters faces many difficulties. The simultaneous expansion of misdemeanor legislation and justice “creates” more offenders, and the diversity of consequences attached to crimes affects the effect of the right to be forgotten; in the age of self-media, citizens can become information disseminators and processors, thus prolonging the time of being forgotten; network service providers transforming themselves into “governors” are prone to become information controllers; the dual attributes of personal information cause value conflicts and normative conflicts between the right to be forgotten and citizens’ right to know. The transformation of network service providers into “governors” increases the risk of losing control over information. Moreover, the dual nature of personal information creates a conflict between the right to be forgotten and the public’s right to know, leading to tensions between values and norms. Therefore, the subject of rights and the subject of obligations should be expanded in both directions. In the era of statutory offenses, the right to be forgotten of the subject of unit crimes deserves attention. The personal information of participants in criminal proceedings exposed to the public due to their litigation activities should be forgotten. Misdemeanor offenders and their relatives, who are constantly being generalized, should enjoy the right to be forgotten. In terms of obligated subjects, both the traditional State protection obligations should be strengthened and the public, news media and online platforms should be included as marginal protection subjects.

数智时代下，刑事被遗忘权的权利主体面临诸多困境。轻罪立法与司法的同步扩张“制造”更多犯罪人，犯罪附随后果的多样性影响其被遗忘权效果；自媒体时代下公民皆可成为信息传播及加工者，从而延长被遗忘时间；网络服务提供者向“治理者”转型极易成为信息失控者；个人信息的二重属性致使被遗忘权与公民知情权之间产生价值冲突与规范冲突。因此，应当对权利主体和义务主体双向扩容。法定犯时代下，单位犯罪主体的被遗忘权值得重视。刑事诉讼参与人因其诉讼活动曝光于公众的个人信息应当被遗忘。不断泛化的轻罪犯罪人及其亲属应当享有被遗忘权。在义务主体方面，既应强化传统的国家保护义务，也应将社会公众、新闻媒体和网络平台纳入边缘保障主体。