There may be information about you online that you’d rather not appear in a Google search. It’s from your past: you declared bankruptcy years ago, or you have a decades-old drinking and driving conviction. The information is no longer relevant – you’ve paid your debts, or you’ve paid your fine. Can you ask search engines such as Google to remove old and embarrassing links about your past that could affect your future? Do you have a “right to be forgotten?”
Canada’s Privacy Commissioner, Daniel Therrien, is asking the Federal Court of Canada to determine if Google falls under Canadian privacy laws when it shows search results about Canadians. If the Federal Court finds that Google does, it might have to remove links to outdated information when requested to do so.
What is the ‘right to be forgotten’?
Online information never goes away. Is it fair to you if irrelevant and outdated information still appears in online searches and affects others’ opinions of you?
Under the “right to be forgotten,” a person can request that a search engine “de-list” websites with this type of information from the results of a search about them. This removes the search engine’s links to the website. The information is still available – but it’s more difficult to find.
Does the right to be forgotten already exist?
In the European Union (EU), a court found a Spanish lawyer, who had declared bankruptcy ten years before but had long since paid his debts, had the right to ask Google to remove links to that information from searches about him. The lawyer successfully argued that the outdated information was adversely affecting his livelihood.
After the 2014 ruling, the EU introduced the right in its new General Data Protection Regulation (GDPR) privacy legislation in 2018.
Does the right to be forgotten exist in Canada?
The right to be forgotten is not specifically included in Canadian privacy legislation. Companies must keep accurate and current information about individuals; that could require them to delete links to outdated information if asked to do so.
In 2018, an individual alleged Google was contravening Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) by displaying links in searches about him to articles that reveal sensitive information about his medical condition and sexual orientation.
He argued Google had caused him direct harm and requested the articles be de-listed as they are outdated and irrelevant. The Privacy Commissioner stated that PIPEDA gave him this right.
Google argued that if PIPEDA does provide Canadians with the right to be forgotten and forces Google to de-list the websites, this would be unconstitutional.
Does the right to be forgotten endanger the right to freedom of expression?
Critics have raised other concerns about giving Canadians the right to be forgotten.
Google’s global privacy lawyer, along with several free speech and media organizations, argue this right conflicts with the right of freedom of expression. They fear individuals will try to hide past indiscretions by requesting search engines delete links to this information.
Google recently announced that it had received more than 650,000 de-listing requests in the EU between 2014 and the end of 2017. While 89 per cent of them came from private individuals, 41,000 requests came from celebrities and 34,000 came from politicians. In response, the EU created a “public interest” exemption to forbid old news stories about public figures from being de-listed. So far, it’s not clear if this has been effective.
Who decides who’s de-listed?
Another major concern of freedom of speech advocates is that the search engine’s administrators decide if a de-listing request should be granted. This puts the public’s right to know in the hands of private companies, and casts doubt on the transparency and impartiality of the decision-making.
The GDPR legislation permits judicial appeal of a search engine’s decisions. In 2018, a British man took Google’s refusal to de-list information about his prison sentence for “conspiracy to intercept communications” to court. The judge ordered Google to de-list the references because the information was now outdated and irrelevant.
If the Federal Court of Canada decides that Canadians do have the right to be forgotten, it may help people whose futures are affected by long-past indiscretions they have long since paid for. But governments, courts and search engine administrators will have to wrestle with ways to enforce the right to be forgotten, based upon the EU experience.