The privacy commissioner wants the Federal Court of Canada to decide whether Canadians have the “right to be forgotten,” which would allow people to request that search engines remove old or embarrassing links about them.
Privacy Commissioner Daniel Therrien is asking the court to decide whether Google falls under federal privacy laws when it displays search results about Canadians; if the court finds the search giant does, the company would have to remove some references when requested.
A similar case in the European Union, where the court decided against Google, has caused controversy, years of litigation and, perhaps, a roadmap for what to expect if a such a right is established in Canada.
Here’s what you need to know about the right to be forgotten.
What is the right to be forgotten?
It’s the idea that nobody deserves to have irrelevant or outdated information follow them around online for their whole digital life. The landmark case in the EU was argued by a Spanish lawyer who wanted websites related to his decade-old bankruptcy to be removed from search engine results. He argued the information was no longer relevant, as he had cleared his debts and moved on with his life, and that it was unfair for Google to present these results to anyone who searched for his name.
Is it really a right?
In the EU, the right to be forgotten was formally introduced in the recently enacted General Data Protection Regulation, its landmark privacy legislation.
But that’s not the case in Canada, where Therrien has said there’s no explicit right to be forgotten in any Canadian legislation, even though he would support one. Under current privacy legislation, though, companies are required to have accurate and current information and that could require them to remove references to outdated search results when requested.
So this information is being deleted when requested?
Not exactly. The right to be forgotten requires search engines to “de-list” websites from the search results, which removes Google’s links to the website. The information, like that about the Spanish lawyer’s repossession auction, is still available but it’s a lot harder to find.
How’s it working out in the European Union?
That depends on who you ask. By the end of 2017, three-and-a-half years after the ruling, Google announced it had received more than 650,000 de-listing requests. The company said 41,000 requests came from celebrities and 34,000 came from politicians — not exactly the intended beneficiaries of the law.
For anyone trying to remove embarrassing links from the web, though, it’s a big win. Google said that 89 per cent of requests starting in 2016 — when it began tracking detailed information about requests — were from private individuals.
How does it affect free speech?
Free speech advocates, media organizations and tech companies argue that the right to be forgotten brushes up against the right to freedom of expression. In fact, Google’s global privacy lawyer has argued that these laws are completely incompatible with freedom of expression. Canadian Journalists for Free Expression has called it “large scale private censorship.”
In the EU, there is a “public interest” exemption, which means old news stories about public figures wouldn’t be eligible for de-listing, but it’s been a tricky thing to enforce.
The European Union has put the onus almost entirely on Google to decide which requests should be honoured, putting a significant amount of power in the company’s hands. It has also had to hire people to do the work. Even supporters of the law have expressed discomfort with this situation, and some have recommended a quasi-judicial panel to sort out these requests.
In the EU, requesters can appeal Google’s decision and this year a UK man won a court case requiring the company de-list references to his time in prison for “conspiracy to intercept communications.” In that case, the judge declared the news of the crime and punishment had become outdated and irrelevant.
How far does this EU law go?
So far the law has a fairly limited scope, but the EU is pushing Google for a more wide-ranging solution.
Google argued before another EU court in September that it shouldn’t have to globalize the right to be forgotten. In complying with the rules, Google has only de-listed references in the country of origin — so in France, for example, the information will only be removed from the google.fr results and not google.com. The EU argues that since users in France can easily switch over to other Google domains, the company isn’t obeying the spirit of the law.
Google says the consequences of a requirement like this would be troubling, with regimes in “less democratic” states abusing the rules. For example, if China implemented a global right to be forgotten and considered web links about the Tiananmen Square protests of 1989 to be “outdated and irrelevant,” removing them from the world’s Google searches.
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