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Right to be forgotten and online information removal under debate

Privacy commissioner may face challenges with the law
|Written By Gabrielle Giroday
Right to be forgotten and online information removal under debate
Daniel Therrien says in Canada, companies are legally obligated to collect, use and disclose information that is accurate, complete and up-to-date. Photo credit: Chris Young/Canadian Journalism Foundation

The privacy commissioner of Canada says he supports the idea that Canadians could pursue the removal of online information about themselves in some circumstances, even though some lawyers have pointed out hurdles may exist in Canadian law.

Daniel Therrien spoke Wednesday at a Toronto event called "Striking the Balance: Privacy and Freedom of Expression in a Digital Age," which also featured several experts, including privacy lawyer David Fraser of McInnes Cooper.

In January, the Office of the Privacy Commissioner of Canada published a draft position paper that stated that under existing law in Canada there could be ways that people could pursue having information about themselves de-indexed from search engines, through the Personal Information Protection and Electronic Documents Act.

Therrien said he continues to support the concept of “the right to be forgotten” — which has been adopted in other jurisdictions through the European Union’s General Data Protection Regulation.

“[I]nformation about individuals is much easier to find with the internet, thanks to search engines and other functions. The information that is found will often be taken out of context. It is easily replicable and is very difficult to delete,” said Therrien.

“All to say that information that went to reputation before the internet, that may be information known to a small circle of people, with the internet, is now potentially known to many, many people. Out of context, that information may be inaccurate and, moreover, may create real consequences for people. Reputation matters.” 

The OPC’s draft position paper has said that, in terms of de-indexing, “PIPEDA applies to a search engine’s indexing of online content and display of search results.”

“As such, search engines must meet their obligations under the Act,” states the position paper.

It also notes that PIPEDA gives people the right to “withdraw consent” when it comes to their personal information, though not in all circumstances.

And, according to PIPEDA, “Where the personal information in question has been posted by others, individuals do not have an unqualified right to remove it.”

“However, similar to de-indexing, individuals should be provided a mechanism by which they can challenge the accuracy, completeness and currency of the information and, where such a challenge is successful, to have the information corrected, deleted or augmented, as appropriate.”

Therrien said that, in Canada, while there is “no explicit right to be forgotten or right to de-indexing,” companies are legally obligated to collect, use and disclose information that is accurate, complete and up to date.   

“If the information [published by a media outlet and found on a search engine] was neither accurate, complete or up to date, I think under the position we propose that the search engine would have to de-index or de-list. For the newspaper, we’d have to look at whether we’re closer to the core of freedom of expression, freedom of the press,” he said.

He said Parliament should study the issue and provide guidance on the appropriate remedies and table legislation if it sees fit.

“[W]e’re playing on the bounds between two fundamental rights,” he said.

David Fraser of McInnes Cooper in Halifax said that challenges exist when it comes to balancing privacy rights with freedom of expression under Canadian law. Courts in Canada have deemed privacy laws as “quasi-constitutional."

“Canada is different from Europe. We don’t have constitutionally protected privacy rights in the same way that we have a constitutionally protected freedom of expression," he said.

Under article 17 of the GDPR, for example, there are very specific requirements around the right to be forgotten.

“The courts grapple with this question of how do you strike the right balance, and the question is actually a little bit academic until we have criteria in front of us,” he said.

There are protections in the law, such as defamatory libel, he added, which falls under the Criminal Code.

“I think, ultimately, the proof is going to be in the pudding, and we don’t know the exact recipe of the pudding, but at least, from all the different permutations and combinations, I don’t think that we’re going to see something that can make it through that,” said Fraser.

Keith Rose, an associate at McCarthy Tétrault LLP, pointed to the test established in the Supreme Court of Canada’s Oakes decision, which he says is a good tool for evaluating what happens when there are competing interests. 

“There are underlying values the Charter is intended to promote, and one of those values is the dignity for the respect of human beings,” he said, especially when it comes to those who are vulnerable.

Rose said that the way the SCC approaches “minimal impairment” — which is set out as part of the Oakes test — is based on context.

“There’s more freedom for Parliament to balance interests when what it is trying to do is protect the vulnerable, and I think we can agree that in trying to protect reputation, we are talking about people who are vulnerable, at least some of the time,” he said, noting there “are also vulnerable people on the other side of the equation.”

Rose said tackling the issue of the right to be forgotten at the early stages should fall to Parliament, not the courts.

“[W]hen it comes down to solving these policy issues, finding the right balance, that is Parliament’s job; that’s not really the court’s job,” he said. “The court has a protective role to intervene when legislators get it wrong, but it’s not at first instance up to the court to say, ‘No, it really should have been this way and not that way.’"


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