The right to erase: music, information ownership, and the Internet’s long memory

The music industry was one of the earliest and most aggressive adopters of the Internet as a means of communication and marketing. Accordingly, many of the legal dilemmas thrown up by the digital age have been dealt with in the context of the music industry before they have been considered by other industries.

In recent years YouTube, for example, has gone from being a place where copyright infringers roamed free to a place where artists actively utlilise their fans to spread the word. Play a new song on stage in Melbourne one night and fans in Iceland can be watching the video within minutes.  The speed of dissemination of content is so fast and available to so many participants that there is barely a moment to consider the ramifications of material being posted that doesn’t necessarily present you in the most favourable light.

The impact of the spread of content can be felt most powerfully at a personal level. That photo of you with a engaged in a drunken late night embrace with the boss’s daughter at the office Christmas party might seem funny at the time, but you may feel less enthused about it doing the rounds of social media the next day.

Incidents such as this, and more serious invasions of privacy, have recently become a topic for debate in media law circles. And while this isn’t a music industry issue as such, it is probably of interest to an industry that is a fervent user of social media.

The Australian Law Reform Commission has recently started an enquiry that takes in consideration of the so-called “right to be forgotten”.  Considered in the context of a broader enquiry into legal remedies to redress serious invasions of privacy, the right being considered seeks to provide a means to have your past erased from the public memory other than through the passage of time and the gradual obscuring of recollections.

In the age of the Internet the collective public memory has been artificially enhanced so that embarrassing photos or humiliating anecdotes are no longer confined to the shoebox under the bed or the re-telling of an annoying uncle. Instead that information can be posted on-line where it will remain available to haunt the subject of the material for years to come.

There are a number of legislative provisions that impact on this area, most obviously the Privacy Act 1988 (Cth), the Telecommunications Act 1997 (Cth) and the Surveillances Devices Act 2004 (Cth) and the criminal law offences relating to harassment, stalking and indecent photography. In civil law the tort of defamation and the equitable action for breach of confidence have their role to play in some circumstances.  However the protection afforded by any of these actions does not equate to what is now being considered as the “right to be forgotten”.

The discussion about this right isn’t new and it was inevitable. The rise of social media and the need to record and share every waking moment has of course resulted in much information being posted on websites that people have later regretted. Cloud computing allows users to store vast amounts of information outside of their direct control. Mobile technology allows users to create content and then almost instantaneously share that content. This provides participants with an endless opportunity to partake in those “it seemed like a good idea at the time” moments.

It is clear that not all these situations can be dealt with through traditional remedies such as actions in defamation. Legally there remains a huge gap between something that is defamatory and something that is merely humiliating and in many cases the problem is that the publisher is the aggrieved individual him or her self.

In Europe earlier this year the European Commissioner for Justice, Fundamental Rights and Citizenship, Viviane Reding announced the European Commissions proposal to create a privacy right akin to the “right to erase”. This position emerges from a principle in French law, le droit a l’oubli, translated as the ‘right to oblivion”, a principle that has its source in the right for a convicted criminal to have his past erased once his time had been served.  In America, by contrast, the First Amendment right suggests that information should not be suppressed.

The challenge then appears to be balancing the right to erase with the right to record history. At this time the right appears to some observers to only to extend to the right to remove data that has been published by the person to whom it refers.

Californian lawmakers have also sought to deal with this situation. In September a bill was introduced to allow children under 18 to request Internet sites remove personal content or information about them. The bill (which is due to become law on Jan 1 2014) is very restricted though. To invoke this right the child must be a registered user of the site and the information must have been posted by the child. It’s arguable that the limitations effectively neuter the bill as most social media website already provide the ability for users to delete the content they upload. Secondly, and more importantly, the spread of content tends to be viral. Even if the original poster can delete their post the likelihood is that others have already copied and shared that content. The genie cannot be put back in the bottle.

One of the flashpoints in this debate has been a blog post from Google’s privacy counsel Peter Fleicher who took the view that the onus to delete online content should lie on the publisher of that content, not the search engine which was able to find the content.

Fleicher’s blog read, in part, “We’re supportive of the principles behind the right to be forgotten – and believe it is possible to implement this concept in a way that not only enhances privacy online, but also fosters free expression for all.” Fleicher also pointed out that most major social media sites already have the delete option that allows publishers a second chance to make a first impression.

The right to erase is likely to have many high-powered opponents. The biggest players on the Internet stage such as Facebook and You Tube are all driven by people’s desire to consume other people’s user-generated content and search engines such as Google exist to catalogue and locate that content. Can Google really be expected to process every takedown notice based on truthful (not defamatory) but embarrassing information? Does society want Google to have such a role?

Andrew Watt is a lawyer at media, entertainment and intellectual property law firm, Gibsons Solicitors