European privacy regulators recognize people the right to have search engines de-index years-old sensitive information about them – including criminal convictions and dropped charges – as a so-called ‘right to be forgotten.’
So far the right doesn’t officially exist in Canada. However, the idea found few supporters – at least as it’s presently designed — on a panel at the recent RightsCon 2018 conference in Toronto.
“It’s very difficult to strike a balance on the right of privacy and freedom of expression,” said Montreal media lawyer Christian Leblanc of the Fasken Martineau law firm.
“I don’t think we’re striking the right balance when we delegate ‘what is up to date?’ to search engines who might not be based in Canada, who did not take part in the research in a news story and who may not want to throw all their weight behind freedom on expression.”
Several years ago using a hidden camera the CBC caught a home repairman peeing into a homeowner’s cup and then leaving the mug on the counter, Leblanc recalled. Sometime later the person ran for public office. If Canada had a right to be forgotten he might apply to have the story de-indexed, Leblanc said, arguing he is not the same person he was years ago. Without being able to find the story “you’re being misled” … “you will never know this was part of his past.”
Search engines index everything on the Internet and then, using algorithms, present a list of stories or information in response to a user query. De-indexing means a link is removed from the search. However, the original story or information remains on the site that created it.
That led Halifax lawyer David Fraser of the McInnes Cooper law firm to say he has reservations about “a law that would require an intermediary to lie to its users” by removing a link from a search engine.
Every right-to-be-forgotten request that comes to him involves a complaint against a legitimate news organization that has written a story, he said, not someone who has written a “cranky blog.” These sites have editors who know what’s important locally.
British media lawyer Mark Stevens noted in April a U.K. judge accepted one convict’s request for a court order against Google because the person had shown remorse, but rejected another convict’s request because they hadn’t. As a result, Steven said, the law isn’t predictable.
Microsoft deputy counsel Steve Crown, whose company runs the Bing search engine, noted search engines are the ones that usually field right to be forgotten requests. European law says in making decisions content providers should consider context.
“How does a company sitting in Seattle, in our case, or in Silicon Valley, determine what is locally relevant in a village of 100 people, or 1,000 people, or 10,00 people, or people speaking a particular language?” he asked. “Very often the hard choices get punted to companies” who didn’t write the content in the first place, he complained, urging laws to be more clear.
Panellist María Paz Canales, executive director of the Chilean-based human rights agency Derechos Digitales, said Latin Americans think in terms of a right to be remembered given the area’s history of human rights abuses.
Although the right to be forgotten isn’t included in Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), earlier this year the federal privacy commissioner’s office issued a draft paper saying it could exist now under the act.
Vance Lockton, a policy and research analyst at the office, said PIPEDA gives Canadian residents the right to challenge the accuracy, completeness and currency (the extent to which the information is up-to-date) of results returned for searches on their name. The paper said challenges should be evaluated on a case-by-case basis, and decisions to remove links should take into account the right to freedom of expression and the public’s interest in the information remaining accessible.
But the paper also urges Parliament to look into the issue.
It’s a complicated matter, he pointed out. An HIV/Aids clinic raised the theoretical issue of a person inappropriately charged with intentionally transmitting a social disease. Although it is accurate the person has a disease, when the charge is dropped they are stigmatized.
As part of its review of PIPEDA, in February the House of Commons ethics committee recommended the government consider adding to the legislation a framework for the right to de-indexing, including covering personal information posted online by individuals when they were minors.
Asked what the privacy commissioner will do now that its research paper has been released, Lockton said it depends in part on how fast Ottawa responds to the ethics committee recommendation. “There are a lot of external factors we are considering on what are our next steps.”
The right to be forgotten will also be discussed on a panel at this week’s annual Canadian conference of the International Association of Privacy Professionals in Toronto.
