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Children’s Right to be Forgotten

Yun Li-Reilly (Harvard University)

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.

Twenty years ago, the conveyer of a message often relied on the utterance, “forget I mentioned it”, when they realize their message is not well received. It was possible, and even likely, that the recipient would actually forget the original communication. The same cannot be said of messages and information communicated via the Internet and social media today, where nothing is ever truly “forgotten” in the literal sense. The memory the Internet is infallible, boundless and amaranthine. This is problematic in light of the imperfection of human memory and our expectation of forgetfulness. Canadian legislators and courts have yet to adopt any “right to be forgotten”, as iterated by the Court of Justice of the European Union in 2014 or otherwise.

Canadian children and youths are heavy users of social media.Footnote 1 Children are different from adults in many developmental, psychosocial and behavioural respects, and their identities undergo substantial revision and reinvention as they mature. Much of this identity development occurs on and via social media platforms. Canadian law treats children differently; yet there is no special “Internet for minors”. Our society forgives and forgets the silly things that children say, yet we do not afford them this forgiveness or forgetfulness online. What results is the “Re-assemblage Error”, whereby anyoneFootnote 2 who accesses the Internet can find pieces of information about a young person that might no longer be accurate, adequate or relevant, and use the conglomerate of these pieces of information to craft a warped and incorrect permutation of that young person’s identity. For the digital natives of today, the phrase “your reputation precedes you” might take on a wholly different and more sinister meaning tomorrow.

Canada should adopt some iteration of a “right to be forgotten” for children. Many argue that the right to be forgotten must be balanced against constitutional freedoms of expression and information. However, this weighing endeavour assumes that “forgetfulness” is the antithesis of “freedom”. In Canada, privacy is synonymous with the protection of personhood and autonomy.Footnote 3 Our protection of free speech is concerned with truth-seeking, social / political participation, and human flourishing.Footnote 4 The ability for children to revise their identities over time is quintessential to these processes, and children’s reinventability depends on some information impermanence: the capacity to adapt their identity and their views, without forever being tied to outdated information about themselves or views they no longer espouse.Footnote 5

If digital permanence may hinder the right of children to develop and flourish, which right is protected under numerous international legal instruments,Footnote 6 then it must be time for Canada to put into place a unified governance regime for the protection of children and their reputation online. This scheme should recognize children as a special group, and as a starting point, place age restrictions on the collection and use of personal data by Internet and social media service providers. In addition to a right of erasure of the information they themselves post online,Footnote 7 children should also be able to enforce the “forgetting” of content that they or others posted when they were under a certain age of consent, if that information later becomes inaccurate, inadequate, irrelevant or excessive. Social media and other Internet platforms rely on a plethora of tools, including algorithms, to determine whether a user should see a piece of targeted content. These platforms can just as easily use the same tools to determine whether a piece of information is no longer worthy of anyone’s attention, and should therefore be “forgotten”. This governance framework should also contain elements that enhance the protection of children on social media specifically, such as minimum requirements for users’ agreements and incentives for empowering young people’s own reputation management. Finally, the governance regime should establish a watchdog agency to fine-tune elements of the regime and to enforce sanctions for violations.

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