Appearance before the Standing Committee on Access to Information, Privacy and Ethics to discuss draft Position on Online Reputation

February 1, 2018
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Ladies, Gentlemen, Committee members, I do not have a formal statement to make, but I do have a few remarks that might provide some context for the debate. I hope this will be useful.

Last week, my office published a draft position paper on the question of online reputation. The first question of course that one may ask is why? What is the relevance of this? We have been told by Canadians that they are concerned about the growing risks to their reputation online. We want to provide people with greater control to protect themselves from these reputational risks.

These risks exist because protecting reputation is increasingly difficult in the digital age. Information about us is systematically indexed and easily accessed and shared. Online information about us can easily be distorted or taken out of context. It is often extremely difficult to remove.

Our report makes a number of key recommendations or decisions.

One, it says that PIPEDA should be interpreted as providing the right to ask search engines to de-index web pages that contain inaccurate, incomplete or outdated information. We think there is grounding in the current PIPEDA for that.

Second, there should be removal or amendment of information at the source in certain situations.

Third, and very importantly, we advocate for much more education on this issue. Education that we can be part of as a part of our public education mandate. We think on this issue in particular, it would be important that provincial and territorial governments take up our recommendation that privacy should be part of the curriculum in schools so that children are taught at an early age on 1), how to protect themselves; and 2) how to behave responsibly as online citizens.

While I think there is a legal basis in PIPEDA for the remedies found in our paper, I think it's also important that this issue be considered by you, the elected officials. We know that this is a controversial issue and that a number of people, stakeholders, are of the view that this would unduly impact on freedom of expression. We know that. At the same time, I think it's important that we act, that the OPC acts based on the current law. It is a very legitimate issue to examine what should be the right balance between protecting reputation and privacy interests on one hand, and freedom of expression on the other.

In drafting our online reputation position paper, specifically in looking at the role of de-indexing, we were not seeking to establish new rights or abilities. Rather, we wanted to apply PIPEDA in its current form. However, as I just said, this raises issues regarding freedom of expression. I think that it is particularly important that elected officials, who represent Canadians, examine this issue.

In addition to considering the balance between privacy and freedom of expression, you may want to examine certain questions of natural justice or important procedures that private sector stakeholders, including representatives of the search engines, have brought to us. Specifically, if a citizen requests that a search engine de-index or take down certain information, what procedural right does the search engine or private organization have to make their case for freedom of expression or against the de-indexing or takedown?

There is an issue that has already been discussed in this Committee in the course of your review of PIPEDA. It might be worthwhile as well to also examine the effects of these rights for potential differences regarding the conditions for exercising these rights in Canada and in Europe to assess the adequacy of Canadian laws in light of European laws.

My last point will be this. I recognize that de-indexing is not necessarily a perfect solution to protecting reputation, but I think it's important to ask because it is important to protect reputation and I think it's important that I act on the basis of the law that I must administer and enforce. But there is a question as to whether the law as it is the best means to protect reputation.

As you look at this question, I would ask you to consider: what are the alternatives? The first question would be: is it worth protecting reputations? If you agree that it is, de-indexing and takedown are the tools I have under the current PIPEDA. If that's not good, what are the alternatives? There are not many alternatives, but maybe you should consider and hear from witnesses what the alternatives should be.

Thank you.