Canadian Privacy Commissioner Report Says Existing Law Already Gives Canadians A Right To Be Forgotten

The Privacy Commissioner of Canada is proposing something dangerous. Given the Canadian Supreme Court’s ruling in the Equustek case — which basically said Canada’s laws are now everybody’s laws — a recent report issued by the Commissioner that reads something into existing Canadian law should be viewed with some concern. Michael Geist has more details.

The Privacy Commissioner of Canada waded into the debate on Friday with a new draft report concluding that Canadian privacy law can be interpreted to include a right to de-index search results with respect to a person’s name that are inaccurate, incomplete, or outdated. The report, which arises from a 2016 consultation on online reputation, sets the stage for potential de-indexing requests in Canada and complaints to the Privacy Commissioner should search engines refuse to comply.

The Commissioner envisions a system that would allow Canadians to file de-indexing requests with leading search engines, who would be required to evaluate the merits of the claim and, where appropriate, remove the link from the search index or lower its rank to obscure the search result. Moreover, the commissioner would require search engines to actively block Canadians from accessing the offending links by using geo-identifying technologies to limit access in Canada to the results.

In other words, the Commissioner is looking to import Europe’s right-to-be-forgotten law, but without having to amend or rewrite any Canadian laws. The report interprets existing Canadian privacy protections as offering RTBF to Canadian citizens. And if it offers it to Canadians, it can be enforced worldwide, despite their being no local statutory right to be forgotten.

Geist notes there are several problems with the troubling conclusion the Commissioner has drawn. First, the privacy protections included in PIPEDA (Personal Information Protection and Electronic Documents Act) cover commercial activity only, regulating use of users’ personal data. When it comes to search results, no commercial transaction takes place. The search engine simply returns results the user asks for. Search engines display ads with the results, but there’s no purchase involved, nor is there necessarily a relinquishment of user info.

Just as importantly, the Commissioner’s conclusion — even if statutorily sound (though it isn’t) — runs directly contrary to the comments received from numerous stakeholders, including privacy groups.

The feedback from leading Internet services, media companies, academics, and civil society groups cautioned against creating a right to be forgotten in Canada. Without a foundation for its approach arising from the consultation, participants can be forgiven for wondering whether the report’s recommendations were a foregone conclusion.

As Geist points out, a right-to-be-forgotten, raised unbidden from existing privacy laws, turns search engines into tools of government micromanagement. Despite its noble aim, it will be abused more often than it is legitimately used. Fortunately, Google and other search engines have been actively challenging dubious requests. And the rest of the private sector has pitched in, with journalistic entities informing readers when convicted criminals, political figures, and other abusers of the system attempt to eradicate factual recountings of their misdeeds.

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