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Articles - Privacy - September 26, 2019

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

EU court ruling on Google highlights lack of clarity in Canadian law

Do Canadians have a “right to be forgotten” online that would allow them to make out-of-date or embarrassing information hard to find?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

University of Ottawa law professor Michael Geist says he’s not convinced Canadians have a similar right to be forgotten online. (michaelgeist.ca)

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The commissioner’s office says links to “inaccurate, incomplete or outdated information” should be taken down upon request.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.”

Google says de-listing is a slippery slope. (Alastair Grant/The Associated Press)

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…

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