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The case against a right to be forgotten

Speaker's Corner

There is no right to be forgotten in Canada. In other words, there is no general right to have information about oneself de-listed or de-indexed from search engine results. Nor should there be.

The Office of the Privacy Commissioner of Canada would disagree with this statement, having indicated that 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to include a right to de-index search results with respect to a person’s name that are inaccurate, incomplete or outdated.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 privacy commission has, however, undertaken a consultation and call for essays, which suggests a recognition of the fact that the existence, scope and, more fundamentally, desirability, of a general “right to be forgotten” should be debated.

Europe has recognized a right to be forgotten. In 2014, the European Court of Human Rights ruling in Google Spain found that under then-existing European data protection laws, Google had to delete “inadequate, irrelevant, or no longer relevant” search results when requested to do so by a member of the public.

Google has since received 720,855 requests to delist 2,735,086 uniform resource locators, commonly known as URLs. Noteworthy from a news-gathering perspective is that 18.3 per cent of the requests relate to the “news” category. When one drills down on the “news” category, one finds that 18 per cent of the requests within that category relate to “crime” and another 18 per cent relate to “professional wrongdoing.” The unsurprising takeaway is that people do not want news stories relating to their past crimes or professional misdeeds easily accessible online.

When the de-indexing requests are denied, litigation often ensues.

European cases making headlines in recent months include the Supreme Administrative Court of Finland ordering Google to remove links to stories about an individual imprisoned between 2012 and 2017 for “diminished responsibility for murder” and the U.K.’s High Court of Justice ordering Google to de-index information about a businessman who had received a six-month sentence relating to a hacking offence.

Not all de-indexing requests are allowed by European courts. The High Court refused to order de-indexing in respect to a businessman who had been sentenced to four years imprisonment for a fraud offence, and the European Court of Human Rights dismissed an application by brothers who had been convicted in 1993 of murdering a popular actor to have reports of the murder anonymized.

Lessons from the European experience to date include that the recognition of a general right to be forgotten will inevitably be followed by a flood of de‑indexing requests and that many of these requests come from persons trying to hide criminal or professional wrongdoing. In the face of what is happening in Europe and before taking steps to implement a right to be forgotten in Canada, we should ask whether privacy laws should be invoked to obstruct access to public records.

There is good reason to think that they should not.

First, in this age of accusations of “fake news” and deliberate distortion of the public record, the preservation of an accurate historical record is at least as important as it has ever been. It is undesirable, and arguably unconstitutional, to make search engines responsible for applying a discretionary test to determine what parts of the public record should be publicly accessible.  As a rule, search engines will have little interest in the underlying content, and de-indexing will be the path of least resistance. Cases will usually only get litigated if the de-indexing request is denied.

Second, as noted, a substantial portion of de­indexing requests, particularly as they relate to links to news stories, involve criminal records or professional misconduct. These are matters that our society does not treat as private. Professional colleges keep publicly accessible records of disciplinary findings. Criminal cases are tried in the public eye, and convictions result in criminal records. The publicity is deliberate. It protects the public interest. There may be a case to be made for de-indexing in specified instances, for example, where someone has had their criminal record suspended by the parole board because “the conviction should no longer reflect adversely on their character,” but this is different than a broad and flexible right to be forgotten applied through exercise of discretion. In the case of suspended record, it would be the parole board, not the search engine, that has made the determination that the criminal record should no longer be part of the individual’s public record.

Third, a right to be forgotten is unnecessary and undesirable, as existing laws protect against unlawful content. In advocating for a right to be forgotten, the Privacy Commissioner of Canada has listed as categories of information that should be considered “not relevant” for de-indexing purposes information that “contravenes a publication ban, is defamatory, or violates copyright, etc.” The law in each of these areas is well developed. If information contravenes a publication ban, for example, the publisher is liable to imprisonment under the Criminal Code. Publication ban violators, defamers and copyright infringers can and should be brought to task under the existing legal frameworks. These areas of law are the domain of the courts, not search engines or, for that matter, the privacy  commissioner.

There may well be certain types of information that should be de-indexed. Rather than focusing on a broad right to be forgotten, the focus should be on developing a narrow list of situations where de-indexing ought to be required. This would be a measured, certain and efficient approach.

Ryder Gilliland is a partner at DMG Advocates LLP and the current president of the Canadian Media Lawyers’ Association.

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