Privacy above all other Fundamental Rights? Challenges with the Implementation of a Right to be Forgotten in CanadaFootnote 1
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.
This paper explores whether importing a “right to be forgotten” (RTBF) that would allow individuals to stop data search engines or other third parties, from providing links to information deemed irrelevant, no longer relevant, inadequate or excessive would be advisable in Canada. The authors argue that not only such a right would be unconstitutional in Canada but also that such RTBF may be, in any event, unnecessary and undesirable both from a legal and a public policy perspective. The authors first argue that a RBTF would most likely infringe upon freedom of expression in a way that cannot be demonstrably justified under the Canadian Constitution. Second, they argue that the current legal framework in place in Canada, at least in some provinces, efficiently addresses the privacy and reputational concerns that a RTBF is meant to address. Finally, the authors raise concerns about the risks pertaining to the RTBF, most notably with respect to the restrictions on the flow of information, as well as the negative impact the implementation of a RTBF has had in Europe over recent months. In their conclusion, the authors warn against entrusting private entities with the tasks of arbitrating fundamental rights and values and determining what is in the public interest, with little or no government or judicial oversight. They suggest, instead, that efforts be put into improving the current legal framework, notably by increasing access to justice, rather than by importing a RTBF that would prove to be inefficient and, to some extent, counterproductive.
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