Protections for
rights of publicity
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38 states recognize common law protection of
one’s name or likeness
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22 states have adopted statutory protections for
names and images
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NY, CA, and TN illustrate the differing
approaches
o
In NY, the right terminates upon one’s death
o
In CA, the right survives death for 70 years,
against commercial purposes, and the rights only pass to your immediate family
o
In TN, name and image rights pass to any heir,
and the right can be transferred
EU vs US Privacy
Protections
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The EU views personal protection as akin to a
property right that is owned by the subject; the US does not.
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Europe generally values privacy interests over
free speech interests; it is the opposite in the US.
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Europe requires express, affirmative consent
before personal data may be collected by others; the US allows implied consent
and often requires “opting out” of default sharing.
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Europe addresses privacy globally; the US
addresses in specific contexts (industry to industry: medical records are dealt
with HIPA, student records are protected by FIRPA).
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Europe recognizes a general “right to forget”;
the US has done so only in very narrow and limited circumstances (in CA, the
Internet Eraser Law allows someone who posted something as a minor to request
that the post be removed). The Right to Forget hides links in search engines,
while the Internet Eraser Law removes the post itself. One removes the card
from the card catalog; the other removes the book.
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Forgetting that one bad night
o
Suppose you were charged with a misdemeanor a
long time ago, for reckless driving, or you were arrested for some reason.
o
In Europe, you may request the search engine
remove links to a news article if it is, “inaccurate, inadequate, irrelevant,
or excessive.” The article remains on the newspaper website, but it would be,
“practically obscure.” It wouldn’t be searchable under your name.
o
In the United States, the First Amendment
protects freedom to speak and publish. No comprehensive law that allows
deletion; California has the Internet Eraser Law, and many states have
expungement laws. Expungement laws allow that after a certain period of good behavior,
you can ask the court to expunge a conviction from your public record; does not
change any potential news articles about the event.
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Surprise! Your bank has been hacked.
o
In Europe, any company with data breach must
notify a central authority and the subject of the breach within 3 days or face
fines.
o
In the United States, breach notification laws
vary from state to state and do not cover all types of personal data. HIPA has
its own laws for medical records.
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Monitoring your online activities
o
In Europe, companies must have express
permission to collect data about you. You can request that the company send you
details about what info has been collected and how it is used.
o
In the United States, breach notification laws
vary from state to state and do not cover all types of personal data. No single
law allows access to information about data use.
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Data collected on children
o
In Europe, digital services must obtain parental
consent before collecting data on anyone under 16.
o
In the US, COPPA requires web sites and apps
targeted to children to obtain parental consent before collecting data on
anyone under the age of 13.
The Star Wars Kid
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How would the invasion of Raza’s privacy have
been addressed in Europe or the United States?
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We discussed Jessica Craig and Simon’s comments
on the post (Last line of Jessica’s post, and the part of Simon’s post about
the insecurity of things that exist outside [his] mind).
“Should the US Congress statutorily recognize
a ‘right to be forgotten’?” 14 said yes, 4 said no.
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The
search engine balances the individual’s right to privacy against the public’s
right to information, freedom of speech, etc.
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From May
2014 to January 2016, Google received 678,593 requests, and have evaluated
1,874,609 URLs for removal. Of those, 43.2% of URLs were removed, while 56.8%
were not. Google claims to have expended millions of dollars to comply with
this directive.
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Google’s
Content Removal Policies: they voluntarily remove four types of content from
search engine results:
o
Child
sexual abuse imagery
o
Nude or
sexually explicit images posted without consent of person (“revenge porn”).
“Revenge porn” is illegal in most states; in some states, it depends on whether
the person knew the images were being created, while in others the distribution
itself is illegal (Utah is the better version)
o
Violations
of copyright (mostly to follow federal copyright laws)
o
Certain
sensitive personal information (SSNs, credit card numbers, bank account
numbers, images of signatures)
Should the “right to forget” apply here:
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Joe
Young pled guilty to child sexual abuse when 18 years old for inappropriately
touching the buttocks of a young girl while working at his mother’s day care
center. As a result, he had to register on the state’s online sex offender
registry. 25 years pass and Joe has no more problems with the law. His mother
wants him to take over her day care center. Before he assumes the business,
which he intends to rename Young’s Daycare, he seeks to delink his name from
the registry when people search his name.
o
Simon
and Valerie said yes, arguing that the passage of time and mildness of the
crime make the register excessive and/or irrelevant. They believe that his
privacy outweighs the public interest.
o
Kate
said that she believes the public availability of the information outweighs
Joe’s privacy, and that him having a different career other than owning a day
care would change her mind.
o
The two
that said they would apply the “right to forget” changed their mind when it was
changed to only happening 5 years ago.
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