Several years ago, the Privacy Commissioner of Canada filed a reference with the federal court in a case that was billed as settling the “right to be forgotten” privacy issue. That may have overstated matters, but the case did address a far more basic question on whether the privacy law applies to Google’s search engine service when it indexes webpages and presents search results in response to searches of an individual’s name. Earlier this month, the federal court released its decision, concluding that it does.
Mark Phillips is a Montreal-based lawyer practicing primarily in the areas of privacy, access to information, civil litigation, and administrative law in both Quebec and Ontario. His client – whose identity remains confidential under order of the court – filed the complaint that ultimately led to federal court decision. He joins the Law Bytes podcast to talk about the case, where the right to be forgotten stands under Canadian law, and what might come next.
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The right to be forgotten, which opens the door to public requests for the removal of search results that are “inadequate, irrelevant or no longer relevant”, has been among the world’s most controversial privacy issues since it was first established in Europe in 2014. My Globe and Mail op-ed notes that the new right responds to concerns with potential reputational harms from inaccurate or misleading information online, but faces the challenge of balancing privacy protections with the benefits of the Internet for access to information and freedom of expression.
The Privacy Commissioner of Canada waded into the debate on Friday with a new draft report concluding that Canadian privacy law can be interpreted to include a right to de-index search results with respect to a person’s name that are inaccurate, incomplete, or outdated. The report, which arises from a 2016 consultation on online reputation, sets the stage for potential de-indexing requests in Canada and complaints to the Privacy Commissioner should search engines refuse to comply.
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The European Union shook up the privacy world in 2014 with the creation of “the right to be forgotten“, creating a system that allows people to seek the removal of search results from Google that are “inadequate, irrelevant or no longer relevant.” The system does not result in the removal of the actual content, but rather makes it more difficult to find in light of the near-universal reliance on search engines to locate information online.
Since the European decision, Google has received nearly 700,000 requests for the removal of links from its search database resulting in the evaluation of 1.8 million URLs. Moreover, privacy authorities in Europe – led by France’s national regulator – have adopted an aggressive approach on the right to be forgotten, ruling that the link removal should be applied on a global basis.
My Globe and Mail op-ed notes that while the Canadian courts have grappled with the question of removing links from the Google search database (a key case on the issue is awaiting a decision from the Supreme Court of Canada), there has been little sense that Canada would establish its own right to be forgotten. That may have changed last week as the Federal Court of Canada issued a landmark ruling that paves the way for a Canadian version of the right to be forgotten that would allow courts to issue orders with the removal of Google search results on a global basis very much in mind.
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