Submission to the OPC’s Consultation on Online Reputation (Globe and Mail)

The Globe and Mail

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.

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The Globe and Mail firmly believes the right to be forgotten would significantly erode the constitutional right of freedom of expression granted by the Canadian Charter of Rights and Freedoms. As the Supreme Court of Canada quoted in R. v. Sharpe “free expression is the matrix, the indispensable condition, of nearly every other form of freedom”.^{Footnote 1} Privacy rights of an individual must not be preserved to the detriment of a fundamental right at the core of a democratic society. Freedom of the press necessitates that accurate, truthful, information be readily accessible to the public.

The OPC Discussion Paper noted a distinction between deleting content and requiring the removal of URL links from search engines, however the impact of relegating content to web obscurity achieves a similar result. Increasingly Canadians access news through various online platforms and often rely on search engines to find information they deem relevant. Restricting the discoverability of accurate, truthful information would be a backdoor approach to restricting freedom of the press. Adopting a position similar to the 2014 CJEU’s ruling which requires search engines remove links to content that is “inadequate, irrelevant, or no longer relevant” would fundamentally shift the long established requirement of proving any restriction on freedom of expression is justified in a free and democratic society, to requiring a corporation (such as Google or Yahoo) justify making truthful content easily accessible using an overly vague standard of relevancy and adequacy. Relevancy may change over time. For example, an individual's past statements or actions may become relevant if they subsequently choose to run for office. Corporations are not the appropriate party to determine what information should be readily accessible to the Canadian public.

Google received 351,000 requests to remove content following the 2014 CJEU decision according to the OPC Discussion Paper. This volume creates a burden on corporations. Corporations have a fundamental obligation to act in the best interests of their shareholders. This mandate will often be at odds with providing a careful, and potentially costly, analysis of such requests and creates a strong financial incentive for corporations to streamline removal requests erring on the side of caution to avoid fines or litigation.

The Canadian landscape currently provides the appropriate balance between freedom of expression and the privacy rights of individuals. This balance is carefully achieved through PIPEDA, defamation laws and recently recognized privacy torts, including intrusion upon seclusion and public disclosure of a private fact. As noted on page 10 of the OPC Discussion Paper, these cases are legally very complex. This complexity is precisely why the responsibility of balancing the privacy rights of individuals against the constitutionally protected right of freedom of expressions should not be transferred from Canadian courts to multinational corporations with limited knowledge of Canadian constitutional law. Determining the appropriate balance of interests between an individual's right to privacy and the right of freedom of expression requires careful consideration and ought not to be simplified to the point that available information becomes unduly limited to only that which an individual chooses to share.

We respectfully submit the right to be forgotten has no application in the Canadian context. Individuals should not be given the right to rewrite history by burying accurate, truthful information. The overall impact of adopting the right to be forgotten would have a profound consequence on the constitutional right to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Courts, not corporations, are the only qualified arbiters to balance the constitutionally entrenched freedom of expression with the privacy interests of an individual.