Canada’s Take on the “Right to be Forgotten”

Machine Fingerprint

As European citizens await the ruling of their highest court, the European court of justice (ECJ), regarding a three-year legal battle between France and Google on the extent of the “right to be forgotten”, across the ocean, Canada grapples with its own approach to the issue. 

The “right to be forgotten” is the right of individuals to have greater control over the data that is available about them online through search engines. It is the right to “determine the development of [one’s] life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past”. Such past actions might include intimate images shared with a partner, criminal records, or even more quotidian information uploaded to the Internet in a moment of poor judgement.

In 2014, the European Court of Justice solidified “the right to be forgotten” as a human right in the Costeja case against Google. Practically, “the right to be forgotten” in Europe means that one can apply to an Internet search engine to remove results that are inaccurate, “inadequate, irrelevant or excessive” that result from a search of that person’s name.

Critiques of this modern right negatively characterize it as “re-writing history” and cite transparency, freedom of expression, and access to information as more important rights.

Perhaps the biggest outstanding question about the “right to be forgotten”, and the subject of the ECJ’s current case, is jurisdictional. France argues that the right is only worth something if it applies universally: if a French citizen has successful applied for to remove something, no Google user based in Europe should be able to find that thing. Google argues that this would set a dangerous precedent for countries who restrict freedom of expression more seriously than France, who would also seek to universalize their restrictions.

In Canada this past June (2017), our Supreme Court ruled in Google v. Equustek  that Canadian courts’ injunctions not only apply to, but to all of its searches around the world. This time around, Canada’s privacy commissioner is weighing in on the “right to be forgotten”. Today the office released its proposed policy, modeled on existing Canadian laws. Their goals in respect to reputation privacy are:

“…to create an environment where individuals may use the Internet to explore their interests and develop as persons without fear that their digital trace will lead to unfair treatment.”

The policy recommends “the right to as search engines to de-index web pages that contain inaccurate, incomplete, or outdated information”. The office says that both “de-indexing” (removing certain information/images from search engine results) and “source take-down” (removing the content from the Internet altogether) are both mechanisms and obligations which can already be found within PIPEDA.  

The proposed measures have not yet been put in place; the commission plans to hold further consultations and recommends that Parliament also study the issue further.

This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.