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

from the which-means-the-United-States-now-has-a-RTBF-apparently dept

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to include a right to de-index search results with respect to a person’s name that are inaccurate, incomplete, or outdated.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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Comments on “Canadian Privacy Commissioner Report Says Existing Law Already Gives Canadians A Right To Be Forgotten”

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Roger Strong (profile) says:

with respect to a person’s name that are inaccurate, incomplete, or outdated.

That’s at least a small bit of sanity, even if impractical in reality.

Consider the Yellow Pages, once important, now little more than an online scam. But their information propagates to many other sites.

I once created an online parts lookup system for a lawnmower distributor. Now, 20 years later, having never worked for the lawnmower manufacturer itself, thanks to the Yellow Pages I’m listed on many sites as their IT Manager. The Yellow Pages has even tried to bill me. And I can’t correct their information let alone talk to them without agreeing to a contract.

Meanwhile I live in the (name changed for privacy) Charleswood part of the city. In the Charleswood apartments, in the suite next to the caretaker’s office (which has no door number.) So the Yellow Pages site has my suite# listed as the caretaker, and I get a lot of their mail. And the description for the business listing they have for my address is the one for the Charleswood Restaurant a block away.

Again, I can’t correct their information let alone talk to them without agreeing to a contract.

There’s already been some harm done, where the government thought I was running a business.

While it would invite abuse, there ought to be at least some pressure on companies to correct inaccurate listings. Not the search engines; but the original inaccurate sites.

As for search engines, at most there should be (and probably already is) a way to tell it to re-index the original inaccurate site once THEY make a correction.

I could go either way for sites that propagate junk data from places like the Yellow Pages with no plans or ability to re-index.

Anonymous Coward says:

Right to be forgotten is different from the right to be de-indexed.

The right to be forgotton is the right to be deleted from someone’s database.

The right to be de-indexed is the right to be deleted from someone’s (but not other’s) indexes.

These are different things. Don’t conflate them. They don’t like that.

Wendy Cockcroft (user link) says:

Re: Right to be forgotten is different from the right to be de-indexed.

Except that there are no such rights. While there is some legislation in place in some countries actually enforcing it is hard — and of course it gets abused.

You are right about one thing: de-indexing from the search results and being deleted from a database are different things.

I’ve had occasion to ask for unwanted material to be deleted from certain websites — and the admins were gracious enough to do so. De-indexing requires a court order and I’m unwilling to go down that route because a) it’s costly and b) posting the link on a blog or social media status update, etc. would get it re-indexed. I’m unwilling to play whac-a-mole for the rest of my life over something that’s easily debunked.

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