THE way that we operate has changed substantially since the dawn of the internet; human nature has not.
In making rules to support the new technology, human needs and motivations and the structural requirements of society must be remembered.
There have been social revolutions before our current hyperactivity. It is instructive to note how the Law of Prescription –the effect of the passing of time on rights and obligations – has changed during those periods. Prescription concerns the tenth of cases where possession is not the law.
Formally, it’s the creation and extinction of rights by their use or non-use. It’s legal underpinning of social policy with more than 2,000 years of respectable written history, balancing the rights of society against those of the individual.
The recognition of rights by possession has been justified in terms of public interest.
The loss of right of ownership has been justified as the punishment of negligent care, deemed abandonment, discouraging forgotten debts, the unfairness of proof at long lapse of time and the social need for certainty, not least of freedom from suit.
Without doubt, the law has long been less sympathetic to rights lost by non-use than to rights gained by possession, but where the balance between possessor and true owner should lie has changed as society has changed.
In classical Rome land was acquired by possession for two years and by one for everything else. By Justinian’s time in the 6th century, three years applied for both. It did not create a good title but acted as a defence against the true owner’s demands upon his return.
What’s interesting is that the underlying need for legal intervention remains the same, but the justification (and rules) change as perceptions and conditions change.
The change in our society lies in the internet’s gift of instantly accessible history that lives on when we don’t and the ability to access intellectual property without realising who owns it, far less paying for it.
Digital executors, paid to expunge the dark digital deeds of the dead, are a new form of an old phenomenon.
In life we don’t have an individual right to privacy (for many, a right not to be exposed), but in death do we also have a right to be forgotten? Brussels thinks so. The UK government thinks not, perhaps for security rather than moral reasons.
If there is a right to edit, should it be universal? Now that information on the internet is ubiquitous and accessible, should players on the public stage have the same right to delete their internet trail as the anonymous majority?
The Royal Assent of the Enterprise and Regulatory Reform Act in April and the proposed overhaul of the 1995 Data Protection Directive will leave a significant legacy. Both are as yet incomplete. The Act’s operational detail will be in Statutory Instruments not yet drafted.
Both promise to radically affect web content and private rights. It is time to consider the consequences of what is to be done.
The social policy to be reflected in the detail would do well to reflect two millennia of experience with prescription. Property rights must be protected for a reasonable period. Adverse open possession as owner should establish ownership to ensure that resources are used but otherwise the law should maintain its suspicion of deemed extinction of rights by inaction.
In particular, the deemed abandonment of rights by click needs to cohere with consumer protection law. Just as the law gives obligations of trust special protection, I wonder if data might be stored after deletion by its authors to emerge, like cabinet papers, after, say, 30 years?
Thus, what is useful can be retained, with its creator’s rights recognised at his or her choice, freedom from suit after a period since first publication achieved, and yet history informed and society’s right to judge retained.
• John Stirling is a solicitor advocate and partner specialising in Litigation and Dispute Resolution with Gillespie Macandrew.