Submission to the OPC’s Consultation on Online Reputation (Option consommateurs)

Option consommateurs

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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In 2016, Option consommateurs conducted a research project entitled Paying to disappear: Legal and commercial aspects of the right to be forgotten in Canada under the contributions program of Innovation, Science and Economic Development Canada’s Office of Consumer Affairs. This research analyzes the policies of the main research engines, online reputation repair services provided by Canadian companies and the legal framework for the right to be forgotten.

According to Option consommateurs, Canada’s legal framework does not address all of the problems raised by the Internet’s perfect memory. In some cases, legally posted information concerning an individual —and for which that individual therefore has no legal recourse—can be harmful to him or her by virtue of the fact that it remains online forever. Even when someone can theoretically take legal action for defamation or invasion of privacy, access to justice is inadequate where technology is involved.

Addressing these problems in Canada by adopting the European view to the “right to be forgotten” remains an uncertain approach. In our opinion, Canadian reflection on being forgotten should be nuanced, while taking into account the many ways of implementing the right to be forgotten in the digital context. Canadian reflection should focus on areas such as the role of algorithms in search engines and the use of outdated and irrelevant information by merchants or employers as a basis for their decisions concerning an individual.

That said, search engines also bear a share of the responsibility when it comes to the right to be forgotten. They should broaden the delisting criteria set out in their policies in order to take into account situations that cause serious harm to individuals. Likewise, if Canadian reflection is to advance, it seems crucial for search engines to exercise greater transparency as regards their practices.