How a 'right to be forgotten' could trigger a battle over free speech in Canada

A push by some legal experts to get Parliament to embrace a "right to be forgotten" for Canadians is setting up what could be a landmark battle over the conflict between privacy and freedom of expression on the internet.

The advent of social media and new information technologies has intensified the debate over whether individuals should have a legal tool to ensure that material harming their reputations doesn't haunt them forever.

This week, Privacy Commissioner Daniel Therrien served notice he intends to seek clarity from the Federal Court on whether existing laws already give Canadians the right to demand that search engines remove links to material that is outdated, incomplete or incorrect, a process called "de-indexing."

Following a round of consultations he launched in 2016, Therrien concluded in a draft report earlier this year that Canadians do have that right under the Personal Information Protection and Electronic Documents Act (PIPEDA).

Google, the world's dominant search engine firm, disagrees — and warns that a fundamental charter right is being threatened.

"The right to be forgotten impinges on our ability to deliver on our mission, which is to provide relevant search results to our users," said Peter Fleischer, Google's global privacy counsel. "What's more, it limits our users' ability to discover lawful and legitimate information."

In a watershed 2014 ruling, the Court of Justice of the European Union said its citizens do have the right to request the erasure of search engine results that are "inadequate, irrelevant or no longer relevant, or excessive." The case began with a request from a Spanish lawyer to remove old material about his past debt problems.

Fleischer said requests made so far underscore the difficult value judgments search engines and European courts now face:

"Former politicians wanting posts removed that criticize their policies in office. Convicted criminals asking for articles about their crimes to be deleted. Professionals such as architects and doctors asking for bad reviews to be delisted. People wanting to have comments removed that they themselves wrote, and perhaps now regret," he said.

"In each case, someone wants the information hidden, while others might argue it should be out in the open."

Parliament must decide

No matter which way the federal court rules, the issue appears destined for Parliament.

University of Ottawa law professor Michael Geist, who specializes in internet and e-commerce law, said he can see rational arguments on both sides of the question.

"Given the complexity, given the freedom of expression issues that arise out of this, I think the appropriate place is within Parliament to explicitly go through the policy process and decide what's right for Canada on this," he said.

A report by MPs on the Access to Information, Privacy and Ethics committee called on government to consider a framework for a "right to erasure based on the model developed by the European Union" that would, at a minimum, include a right for young people to have information posted online about them taken down.

The government's response, signed by Innovation Minister Navdeep Bains, said the government agrees in principle that the destruction of information is appropriate when it is no longer needed for its intended purposes and could inflict harm on reputations.

Geist said removing harmful content could be the best approach, but Europe's "right to be forgotten" model simply removes the search engine results, making the material harder to find.

Clear standards required

Any future decisions on de-indexing or the removal of material should be made by an independent body, guided by standards that are clearly articulated and properly applied, he said.

"Leaving it ultimately to private sector companies to make those decisions, I think, is enormously problematic, and I think that's what leads to cries or concerns about censorship where legitimate content is removed, and suspicion about why it was removed," Geist said.

Internet lawyer Allen Mendelsohn worries about the "slippery slope" implied in a right to be forgotten. He said he was once opposed to the idea but now supports it in a limited form — as long as it is carefully balanced with the right to free expression.

With no easy answers on how to move forward, he said it's Parliament's duty to debate the concept and decide on appropriate standards.

"Parliament represents the people, and if the will of the people think this is a good thing to do, then there's no good reason why they shouldn't go ahead and do it," he said.

As an example of an appropriate use of the right to be forgotten, Mendelsohn cited the example of someone convicted of a crime and receiving a pardon, seeking to have material about the original conviction expunged from the internet.

Flood of requests expected

He said he expects that Canada will face a flood of requests if current or future laws embrace the right to be forgotten.

"There's no question that the lessons learned from Europe are that this would be a bombardment and a logistical nightmare for search providers," he said. 

Therrien has said Canada's outdated privacy laws don't account for the fact that, today, decisions about employment, housing or credit are made based on social media and other online material that may be inaccurate or out of date, and that the situation disproportionately harms young Canadians.

Google argues that freedom of expression is a fundamental human right. While the European court upheld the right to be forgotten, Chile, Colombia and the U.S. have all rejected it.

"Each country needs to figure how to  balance these rights. Ultimately, Canadian courts will need to figure out how to balance these rights in accordance with Canada's Charter," Fleischer said.

"As the privacy commissioner considers translating the European model to Canada, it will also have to confront the challenges of how to balance one person's right to privacy with another's right to know, and whether the European right to be forgotten would be consistent with the rights outlined in Canada's Charter of Rights and Freedoms, which assures Canadians 'freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.'"