Guernsey: the go-to place for the right to be forgotten?

While the European Commission might seem to some of us to be taking most of the initiatives towards reshaping the appearance of Europe's intellectual property scene, every so often a local initiative steals the limelight.  So it was with the French loi Hadopi and the UK's proposed digital rights exchange. Another such initiative hails from a part of the Old Continent which has not hitherto been widely associated with IP reforms: the Bailiwick of Guernsey, a Crown Dependency in the Channel Islands which is probably better known for tourism and postage stamps than for its commitment to IP enforcement issues.

As the guest post below, indicates, Guernsey will shortly be bringing into force a fully-fledged 77-section law protecting image rights.  Mark Engelman has kindly volunteered to write about it for this weblog. This is what he has to say:

"Guernsey Pre-Empts Europe’s Right To Be Forgotten

The Image Rights (Bailiwick of Guernsey) Ordinance 2012 contemplates a unique registration of the personality and image rights of an individual, protecting them from use without that person’s consent within the jurisdiction of the States of Guernsey. Personality of a person is conveyed through the images of themselves which they present to the public. For example, Dustin Hoffman’s 'Rainman' character is a personality defined by a crew-cut and monotone, in the same way as we can define a cat as possessing whiskers and meows.

The Ordinance, pending adoption by the Guernsey legislature, when it becomes law, contains provisions clearly influenced by registered trade mark and copyright law. It seemingly reproduces the defence available to a person who reproduces an image right without consent along precisely the same lines as that associated with the fair dealing defence available to a copyright infringer, namely that found under the heading “criticism, review and news reporting". One important aspect of that defence within the rubric of copyright infringement is that, in order to avoid a finding of copyright infringement, the reproduced article must be reporting “current events”, if the defence is not to fail.

That might at first sight seem to provide a right of a copyright owner to have recycled old news reports taken down from the internet simply because the news is stale. But, in practice, there is very little actual reproduction of the precise text or a substantial part of the texts used with newspaper journalism on the internet. It is the gist of an exclusive story that is taken, not a word-for-word reproduction which might otherwise attract the sanction of copyright infringement.

However, things are very different when one is dealing with the new Guernsey Image Rights Ordinance because it is the use of an image of a personality registered under the Ordinance that is protected when a story becomes stale and such a reproduction does not need to be exact in order to attract protection. An article which recycles the image of Kate Middleton when her photographs were first covertly taken earlier this year, a current story then, would no longer be current now. Her image rights would be infringed if a similar or identical image is used today (as it is all over the internet in stories still reporting her holiday in France) which can be confused with her image rights or has the effect of free riding upon, diluting or tarnishing her reputation. The adverse consequence trinity is well-known to trade mark practitioners.

Thus, in Guernsey, after 3 December 2012, when the new Ordinance is implemented, an old story about Kate Middleton which remains published on the internet can be taken down as soon as the story is no longer current.

Back in the UK the Leveson enquiry considers the balance to be met between Articles 8 and 10 of the European Convention on Human Rights, freedom of expression versus freedom of privacy when forging a Government initiated regulation of the press. And in Europe the recently proposed Data Protection regime which is intended to provide individuals a “right to be forgotten” by allowing them to have stale news material concerning them taken down from the internet is under attack. It is argued that the “right to be forgotten” might conflict with other individuals’ “right to remember”.

So has Guernsey stolen a march on Europe?"

Mark Engelman is Head of Intellectual Property, Hardwicke, and a Director, Harbour Intellectual Property Limited, Guernsey