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Can the right to be forgotten find application in the Canadian context and, if so, how?

Google Canada

August 2016

Note: This submission was contributed by the author(s) to the Office of the Privacy Commissioner of Canada’s Consultation on Online Reputation.

Disclaimer: The opinions expressed in this document are those of the author(s) and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada.

We appreciate the opportunity to participate in the Privacy Commissioner’s inquiry into the possible application of a “right to be forgotten” in Canada. As a search engine that must comply with the Costeja ruling in Europe and that has spent nearly two years at the centre of the debate about the ruling’s impact, we wish to comment on the Commissioner’s inquiry through the lens of experience.

It is clear that the growing use of, and reliance upon, online information and services leads to a greater likelihood of uncovering previously obscured information about individuals. Certainly, this raises important questions about individual privacy and strategies to help individuals exercise some measure of control over their reputation online.

The Costeja decision of the Court of Justice of the European Union (CJEU) assigned responsibility for the receipt, processing, and evaluation of delisting requests to search engines. The examples we’ve seen—and which we illustrate in our Transparency Report—highlight the difficult value judgments now facing search engines: former politicians wanting posts removed that criticize their policies while in office; serious, violent criminals asking for articles about their crimes to be deleted; professionals like architects and teachers struggling with bad reviews; and comments that people have written themselves (and now regret). In each case, someone wants the information hidden, while others might argue it should be out in the open. This is a substantive responsibility for any company that provides a search engine service. For new entrants to the industry, it could also be considered a barrier to entry.

As the consultation paper has identified, individuals, data protection authorities, newspapers, academics and many others have criticised the transparency of this process, and the recourse available to both the individual whose request for delisting is not met and to websites that are affected by delisting decisions.

Implementing the “right to be forgotten” in Europe is also not a small endeavour. Since the European Court of Justice decision in May 2014, Google has evaluated requests from Europeans to have nearly 1.5 million URLs delisted from search results across Europe.

Of those URLs that have been processed, Google has delisted 535,901.Footnote 1 Google declines to remove URLs more often than not, on the grounds of public interest. Local regulators have viewed our approach largely with approval.

This means that access to over half a million webpages has been altered for European individuals. Access via search to pages not delisted has been preserved only through a manual review process by Google.

Information-finding services like search engines are critical for sifting through the vast amount of information online. Many have likened the European court’s ruling to removing the cards from a library card catalog but leaving the books on the shelf. However, on the Internet, there are no shelves to browse, no way to walk through the stacks and follow the alphabet to the information you seek. Decisions to delist URLs can affect users’ access to media properties, past decisions by public figures and information about many other topics.

Of course, Google understands that there are instances where it’s appropriate to remove content from search results because, for example, it has been deemed illegal under local laws. Our products have well-established systems for users to flag content that violates our policies. Authorities may also submit requests to locally block content that is deemed illegal under local laws, including laws about privacy. We have worked hard to be a responsible actor. A crucial aspect of this responsibility means balancing privacy with other values—specifically the right to free expression.

While the CJEU may have established a “right to be forgotten” in Europe under European laws, it is important to note that freedom of expression is a broadly recognized—and passionately defended—right here in Canada and across the Americas.

This is clear through the work of the Organization of American States, in particular in the OAS’ American Convention on Human Rights, and principle 10 of the OAS’ Declaration of Principles on Freedom of Expression:

10. Privacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.

At a global level, the United Nations General Assembly proclaimed in Article 19 of the Universal Declaration of Human Rights that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

We see these rights replicated here in Canada, where our own Charter of Rights and Freedoms states in section 2(b) that Canadians’ fundamental freedoms include “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

This isn’t just a theoretical exercise. When considering a “right to be forgotten” in any form, it’s important to consider the impact on free expression. Google and other search engines have, for two years, been delisting information from search results as required in response to the CJEU’s decision.

For example, many of the URLs we have processed are from a reputable news source or other journalistic news sources. Breaking the link between the information seeker and this content has been criticizedFootnote 2 by journalists and media organizations who research, edit, and publish information in the public interest.

By putting the responsibility on the search engine to judge what is required to be “forgotten” under European laws, and without affordances to share information with the publisher or indeed the public about a removal request, the public cannot analyse the full impact on the public interest of delisting a URL. And the incentives for search engines under European laws are skewed towards removal. If a search engine wrongly takes down a particular page, that page falls out of its results; if it wrongly refuses to take down a page, the search engine can be subject to civil judgments or regulatory penalties. And these decisions must be carried out hundreds of thousands of times.

Any framework that has such significant implications for the freedom of expression must be accompanied by transparency, accountability, and recourse mechanisms. And any discussion of the possible application of a “right to be forgotten” in Canada should recognize and address the complex dialogue around this issue that continues to exist today in Europe.

Thank you for the opportunity to provide these first comments on the Privacy Commissioner’s consultation paper on online reputation. We look forward to further conversation about this challenging issue, with significant implications for privacy, access to online resources, and freedom of expression in Canada.

Colin McKay
Head, Public Policy and Government Relations
Google Canada

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