Succeeding in Your Business: Nope, there's no 'right to be forgotten’ in the United States

By Cliff Ennico 

“I am a 40-something professional with a somewhat unusual legal problem.

“While I am well-established in my profession, I moonlight as a semi-professional musician in my area, performing at local bars, clubs and restaurants. I released a CD of my music last year, which has been very well-received, and I’m starting to build a real following on YouTube and other social media sites.

“While I’m happy about this, I can’t help but feel that my age is posing a barrier to my future success as a musician. People tell me that I look much younger than 40-something, but my music is a blend of hip-hop and folk that seems to appeal much more to a younger millennial/Gen Z crowd than my contemporaries. My fear is that if these people know my true age, they will view my music as ‘Dad music’ and not take me seriously as an artist.

“Please be assured I am NOT lying about my age anywhere online — I just keep silent about my age when promoting my music. But I’m concerned that listeners can find out about it indirectly through other websites. For example, they could go to my college’s website and see that I graduated over 20 years ago.

“I have written some of these sites and asked them to take down information that would reveal my age, but all of them have rejected my request. Is there any law that could help me get information removed from these sites that would reveal my age or any other sensitive information?”

The short answer is there is, but it applies only in Europe.

In May 2018, the European Union adopted a comprehensive set of privacy rules known as the General Data Protection Regulation (GDPR for short). One of the more controversial provisions in the GDPR is Article 17, which gives individuals residing within one of the EU countries (called “data subjects”) the right to compel websites to remove negative private information published about them. Under Article 17, personal data must be erased immediately if the data is no longer needed for its original processing purpose, the data subject has withdrawn her or his consent and there is no other legal ground for processing, the data subject has objected and there are no overriding legitimate grounds for the processing or erasure is required to fulfill a statutory obligation under the law of any European country. It is not clear exactly when a website has an overriding legitimate ground to keep information posted if a data subject demands it be taken down. Individual privacy is considered a fundamental right in Europe and a website owner would have to prove a compelling case to justify continued publication of content in the face of a GDPR takedown request.

Article 17 was primarily meant to target data published online that is false, misleading or obsolete — for example, a 20-year-old photo of you taken during a drunken fraternity party or so-called revenge porn from a jilted lover. Because the penalties for failing to comply with GDPR are extremely steep, however, many website owners simply cave in to GDPR takedown requests in order to avoid costly and time-consuming litigation.

The problem here is that, sadly, you are not a European, and as of the date of this column, neither the federal government nor any state government in the United States has adopted a similar right to be forgotten. Publishers in the United States enjoy broad immunity from prosecution under both the First Amendment and Section 230 of the Communications Decency Act of 1996 (see the act’s Wikipedia page for more details), with only one (highly controversial) exception requiring takedowns of information that promotes sex trafficking.

The type of information whose removal you are seeking — information that might (accurately) reveal your age — doesn’t fall within an exception to the immunity provided by Section 230. In fact, colleges and universities in most states are required by law to maintain accurate and up-to-date databases regarding their alumni — a requirement that could be easily defeated if they were to give in to takedown requests. I would think that an extreme case — a college publishing the current address of an alumnus who is in the federal Witness Protection Program, for example — might lead a sympathetic judge to enforce a takedown request in the interest of protecting the subject’s life. Your motivation, while sincere, does not rise to that level.

I wouldn’t worry too much about people finding out how old you are. In my experience, if your music is truly good, nobody cares anymore how old you are. If they did, no one would spend thousands of dollars on Rolling Stones concert tickets. Don’t give in to the temptation to lie about your age or Photoshop your videos and photos so as to appear younger than you are. That will get you doxxed (outed) on social media sooner or later and then nobody will take you seriously.

Let your music speak for itself, and be proud if a younger generation accepts you as one of its own.

Cliff Ennico (crennico@gmail.com) is a syndicated columnist, author and former host of the PBS television series “Money Hunt.” 

COPYRIGHT 2020 CLIFFORD R. ENNICO 
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