Europeans have a ‘right to be forgotten’ online. Should Canadians?

Do Canadians have a “right to be forgotten” online that would allow them to make out-of-date or embarrassing information hard to find?

The short answer: it’s complicated.

A European Union court decision this week with worldwide implications hasn’t provided much clarity for Canadians. But more certainty could be on the way.

The European Court of Justice ruled on Tuesday that the EU’s “right to be forgotten” legislation does not apply beyond its borders.

The law allows a citizen to ask Google to remove problematic or irrelevant web results that appear when their name is searched.

The corresponding web pages aren’t deleted, but in many cases, the internet giant prevents them from appearing in its search results — a process known as de-listing or de-indexing.

Google says since the European law came into effect in 2014, it has received 845,501 such requests and removed 45 per cent of the 3.3 million links it was asked to take down.

The court said the EU doesn’t have the tools to enforce de-listing on a global scale.

The new clarity on the limits of the EU law “will send a signal to some countries, including Canada, about the prospect of creating their own right to be forgotten,” said Michael Geist, a law professor at the University of Ottawa specializing in internet issues.

Canada does not have a formal, European-style rule for de-listing requests. Privacy Commissioner Daniel Therrien is seeking clarity from the Federal Court about whether Canada’s Personal Information Protection and Electronic Documents Act already provides a right-to-be-forgotten guarantee.

The commissioner’s office says links to “inaccurate, incomplete or outdated information” should be taken down upon request. But it also says “there is some uncertainty in the interpretation of the law,” and that Google considers de-indexing in Canada to be “unconstitutional.”

Pushback from Google

Google maintains that de-listing represents a slippery slope. In a statement to CBC, the company said “removing lawful information from a search engine limits access to media properties, past decisions by public figures and information about many other topics.”

Peter Fleischer, Google’s global privacy counsel, said freedom of expression is a “broadly recognized — and passionately defended — right in Canada.”

“We believe that every Canadian has the right to access lawful information.”

Canada’s opposite take

The EU court case arose after the French privacy watchdog fined Google for refusing to de-index sites globally. The court’s ruling means European authorities cannot, in fact, get search results removed abroad.

A 2017 Supreme Court of Canada decision came to the opposite conclusion. The top court upheld a B.C. ruling that instructed Google to remove certain search results worldwide — not just in Canada — as requested by the tech firm Equustek Solutions.

Sunny Handa, a Montreal-based partner at the law firm Blakes, said if a similar case were to come before the Supreme Court again, it could rule differently. He called the EU court’s decision “a step in the evolution of the issues.”

Though the ruling only applies to the EU’s 28 member states, Canadian legal observers have been poring over it for a hint of things to come, and whether it could signal a global change in attitudes.

The Office of the Privacy Commissioner of Canada says it’s reviewing the decision, too.

Eloïse Gratton, a lawyer who focuses on privacy and data protection, said the French case could have an influence on Canadian courts.

“Perhaps courts will say there’s no trend to follow” in pushing for de-listing results abroad, said Gratton, a partner with the law firm Borden Ladner Gervais.

Fearing a court could potentially order “politically or religiously sensitive material” be removed, Gratton says she’s “not a big fan of the right to be forgotten.”

But it seems many Canadians do like the idea.

An Angus Reid Institute survey last year found 51 per cent of Canadian adults were in favour of a right to be forgotten online and to have search results changed. Only 23 per cent said erasing negative information “means erasing history and facts.”

‘Canadians need better tools’

The Office of the Privacy Commissioner (OPC) released its draft position on “online reputation” last year. It argues that requests for de-indexing search results already fall under the jurisdiction of existing privacy legislation. But OPC spokesperson Vito Pilieci said the office is holding off on finalizing its position as it awaits clarification from the Federal Court in a reference case.

“It is clear that Canadians need better tools to help them to protect their online reputation,” he said.

The reference case will take some time to be settled.

Geist, the law professor, said the case is still focused on procedural questions, rather than the crux of whether Canadians should have a right to be forgotten online.

For now, he said it’s still not clear in Canada whether a search engine would have a legal obligation to remove links upon request.

“I’m not convinced we have a right to be forgotten.”