Canadian Government Leaning Towards A Right To Be Forgotten It Can Enforce Anywhere In The World

from the I-for-one-welcome-our-new-Canadian-overlords dept

It looks as though the “Right to Be Forgotten” will be crossing the Atlantic and setting up shop just north of the United States. The Canadian Privacy Commissioner has already stated existing Canadian privacy laws allow for this, but there’s been no statutory adoption of the Commissioner’s theory.

The idea that Canadians should join their European counterparts in being able to selectively erase personal information continues to be pushed by the Privacy Commissioner. Speaking at a recent conference in Toronto, Privacy Commissioner Daniel Therrien reiterated his belief Canadians should be offered this dubious “right.”

Therrien said he continues to support the concept of “the right to be forgotten” — which has been adopted in other jurisdictions through the European Union’s General Data Protection Regulation.

“[I]nformation about individuals is much easier to find with the internet, thanks to search engines and other functions. The information that is found will often be taken out of context. It is easily replicable and is very difficult to delete,” said Therrien.

“All to say that information that went to reputation before the internet, that may be information known to a small circle of people, with the internet, is now potentially known to many, many people. Out of context, that information may be inaccurate and, moreover, may create real consequences for people. Reputation matters.”

Reputation does matter. That’s the problem with the RTBF. While there are legitimate uses, there are also plenty of people willing to abuse it to obtain an unearned reputation. Fortunately, this abuse is routinely called out by press outlets hit with RTBF requests to delete unfavorable coverage or criticism.

The Privacy Commissioner’s pitch continues and the Canadian Parliament seems amenable to the idea. The committee handling privacy, information access, and ethics has issued a report nudging the Canadian government towards the adoption of the Right to Be Forgotten. But its conclusions are somewhat contrary to the Privacy Commissioner’s assertions. The committee likes the idea but points out these protections are not built into Canada’s existing privacy laws.

The Committee’s first finding in this regard was that when online reputational damage occurs in the context of personal relationships rather than commercial transactions, PIPEDA does not apply (since the latter only applies to the collection, use and disclosure of personal information in a commercial context).   Moreover, the Committee noted that the Criminal Code treats a number of related offences, such as regards the publication of intimate images without consent. Accordingly, the Committee clarified that the scope of their analysis was limited to the protection of privacy and online reputation in the context of commercial transactions.

With this, the committee appears to believe it can amend PIPEDA to include a “right to be forgotten,” but one more expansive than the European model. According to this, it would appear to cover things like revenge porn.

As regards the right to erasure, the Committee noted that PIPEDA does not expressly contain such a right, although the principles of “consent”, “limited retention” and “accuracy” may be applied in some instances to give effect to a limited right of erasure in certain circumstances.

For example, according to Principle 4.3.8 of Schedule 1 to PIPEDA, an individual has the right to withdraw consent to the collection, use and disclosure of his/her personal information. If this is then combined with the limited retention principle, pursuant to which an organization may only retain personal information for so long as it is necessary for the fulfilment of the purposes for which it was collected, then (in some circumstances) an individual may successfully argue that, upon withdrawal of their consent, the organisation that holds their information should destroy it.


In this context, several of the Committee witnesses argued that PIPEDA should be amended to create a more comprehensive right of erasure (to address situations of cyberbullying or revenge porn, for example) that would be similar in scope to the right of erasure found in the GDPR.

It’s not that revenge porn and cyberbullying should be ignored. It’s more of a question whether amending the law will fix the problem without a lot of collateral damage. Fortunately, some of the committee members have expressed this exact concern, noting the potential PIPEDA amendments would likely adversely affect Canadian freedom of expression.

Unfortunately, there’s a larger problem that’s not discussed in the report: the recent Equustek decision. In this lawsuit, Canada’s top court declared delisting orders issued in Canada were valid worldwide. Google challenged this decision in the US (Equustek did not make an appearance), obtaining a judgment finding the Canadian decision could not be applied extraterritorially. The committee believes the ruling could be read as covering personal information, not just trade secrets (which were central to the Equustek case). It also appears to indicate that any delisting requests can be enforced worldwide, no matter where the recipient of the order resides.

Further, the committee apparently believes the tech companies that will be delisting info aren’t properly equipped to evaluate the public’s interest in removal/non-removal when handling requests. This suggests the Canadian government may take a more hands-on approach if it decides to create a Right to Be Forgotten. Fortunately, some of the committee comments suggest they fear over-compliance rather than under-compliance, which may mean the Canadian government’s involvement may actually include policing requests for abuse of the law.

Even with these cautionary comments, the concern remains that Canada will create its own version of RTBF, but with the added nasty side effect of the nation’s highest court declaring orders issued in Canada must be executed by companies located in other countries. The committee’s report [PDF] spends no time discussing this unfortunate ruling or its adverse effects if the world’s tech companies are subjected to extraterritorial delisting orders. But that’s what will happen if PIPEDA is amended: Canada will be giving its citizens the opportunity to engage in worldwide censorship.

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Comments on “Canadian Government Leaning Towards A Right To Be Forgotten It Can Enforce Anywhere In The World”

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Anonymous Anonymous Coward (profile) says:

Yet another law and counting

I know that we have too many laws, overlapping laws, more unneeded laws coming, and a legislative system that has never heard of a problem they couldn’t, or wouldn’t write a law for, whether it makes sense or not, whether it is actually needed or not. I have a feeling that this symptom is the same in many countries.

Now we have countries that want their laws to become our laws, whether they pass through our broken legislative process or not. We have too many laws now and they want to pile their laws on top of ours, racking up exponentially the number of laws we have now.

What happens when one of their laws actually conflicts with an existing law of ours? Who is supposed to win? Do we accept laws from all other countries? What if that foreign born law is actually an infringement on our Constitutional rights? I know that government is working on abrogating those rights as fast as they can, but do they really need the help of other countries?

Anonymous Anonymous Coward (profile) says:

Re: Yet another law and counting

Two things came to me last night.

The first is about judge made law. The USSC recently told cops it was OK to shoot people, because their rights had not been ‘clearly established’. The second is if they can impose their laws on us, how about imposing our laws on them? Hmm, which laws should we impose first?

Anonymous Coward says:

NO similarity between gov't and civil suit!

Enforcement in civil suits is not automatic, requires going to court again. Equustek didn’t bother to contest in US, apparently hasn’t in Canada either, surely because very little benefit for costs.

HOWEVER, GOV’T is full of people with little to do and costs are no barrier. This WILL turn out entirely different for your precious GOOGLE, just as for the EU. Gov’t will send armed men to arrest company officers, and seize property, and hold them until even the obstinate mattoids of Google obey.

Roger Strong (profile) says:

Re: Re: NO similarity between gov't and civil suit!

No doubt he’s talking about arresting officials in Google’s Canadian operations.

Much like how in the late 1990s Germany arrested a local CompuServe official over porn on Usenet, and Yahoo received legal threats from France over sales of Nazi memorabilia in the US.

Anonymous Coward says:

yet another "feelings" law in Canada

How did Canada end up with so many laws that basically criminalize hurting someone’s feelings? From “hate” speech to gender pronouns laws and more, Canada seems to be run by the kind of people who had such a sheltered childhood they never had to grow up. Maybe Jordan Peterson should take a break from his worldwide tour telling everyone how bad Canada’s laws are, return to his country and start working to inject some sanity into Canada’s legal system.

Roger Strong (profile) says:

Re: yet another "feelings" law in Canada

How did Canada end up with so many laws that basically criminalize hurting someone’s feelings?

As in the US – SESTA for example – bad laws get passed with good intentions. So Canada passed some "hate speech" laws over a decade ago.

But what the Breitbart crowd tends not to mention is that those laws got neutered a decade ago when tested in court.

Maybe Jordan Peterson should….

Look. The US and other countries have those who insist that the instant you grant rights to women or LGBTQ folks, you live in a totalitarian regime where you’ll be arrested for using the wrong gender pronouns. They’re dismissed as delusional morons, and the arrests don’t happen. Canada is no different.

Mike-2 Alpha (profile) says:

Re: yet another "feelings" law in Canada

Because we keep electing the Liberal Party. Despite the name, they are the party of the status quo. They have unironically referred to themselves as the “natural ruling party”. That’s a worldview that requires a certain amount of stasis, lest you upset the apple cart and cause a set of circumstances that push you out of power.

Only, if you just sit on your hands and keep things going as they are, the voters start to wonder what you’re doing for them. Thus you end up with one of two things: laws enacted to protect your feelings from being hurt, or laws intended to protect you from yourself. Always targeting behaviours outside the mainstream, mind, so that the bulk of the voting public won’t get upset.

Seriously: if you lean left in Canada, vote NDP or even Green. If you lean right, at the Federal level, the Conservatives are the only game in town. The Liberals only stand for Feelings Laws and taking care of you because you can’t take care of yourself. That and their own continuity of rule.

Anonymous Coward says:

Re: Re: Re: yet another "feelings" law in Canada

That was Ms. Clinton, who was considered unstoppable in the 2008 election. But after her unthinkable loss, she made sure that 2016 would not be a repeat of 2008, by positioning her loyalists into the top rungs of the Democratic party, and then acting shocked when they got caught doing exactly what they were supposed to do (without being caught, of course).

Anonymous Coward says:

Re: yet another "feelings" law in Canada

How did Canada end up with so many laws that basically criminalize hurting someone’s feelings?

Because people whose feeling are hurt make a lot of noise, and politicians never consider do nothing as a valid option.So if you can get enough noise made, the politicians will do something.

Leigh Beadon (profile) says:

Re: yet another "feelings" law in Canada

Yeah, don’t get your information on the status of Canada’s hate speech laws from the stupid man’s smart person.

There are issues with them, yes. Peterson, however, just hyperbolically misrepresents them. For example, there was never ever a law forcing anyone to use any pronouns – that’s just something he made up.

Anonymous Coward says:

Re: Re: yet another "feelings" law in Canada

The idea that Jordan Peterson doesn’t like is that there is bad wording in the new laws: basically that you don’t have to have had knowledge of someone’s preferred pronouns to “harass” them with the wrong ones.

There’s no precedent set from using these laws yet, so we don’t know how stringently they’ll be enforced. If there were some more clarity about that section of the bill, it wouldn’t be so contentious.

Leigh Beadon (profile) says:

Re: Re: Re: yet another "feelings" law in Canada

here is bad wording in the new laws: basically that you don’t have to have had knowledge of someone’s preferred pronouns to "harass" them with the wrong ones.

What wording are you referring to?

The law is not very long. All it does is add "gender identity or expression" to existing lists of categories that are protected. It doesn’t change the way the laws function. It doesn’t even say ANYTHING about pronouns – not in the new bill, nor in the Canadian Human Rights Act as a whole. The new bill also in no way changes the definitions of harassment in the CHRA.

Anonymous Coward says:

Re: Re: Re:2 yet another "feelings" law in Canada

Jordan Peterson’s complaint seemed to be that his university administration was interpreting the law’s scope very broadly, so the use of ‘preferred’ gender pronouns, previously a courtesy, would now be mandatory under Canadian law.

The law specifically gives gender identity/expression confused people the rather nebulous legal right “to have their needs accommodated” — whatever that is supposed to mean (which is probably anything and everything that anyone demands it should mean until a judge says otherwise)

anon says:

Re: Re: Re:2 yet another "feelings" law in Canada

So this law doesn’t. If I understand correctly this laws allow for implementation in local policies. The Ontario Human Rights Commission policies include:

“ Refusing to refer to a person by their self-identified name and proper personal pronoun”

The only time I could find this being enforced was with regard to police officers intentionally using the wrong pronoun after being asked to stop. Now I can’t find that link(^^).

DannyB (profile) says:

Re: There is a bigger loss to be suffered by

If some people independently maintain archives of the forgotten things, but not made publicly available. At some future point, and possibly sooner than you think (like 20 years) and those materials are made available online by multiple sites, it will sure make fools of those who wanted the facts to be forgotten.

Anonymous Coward says:

Re: Re: There is a bigger loss to be suffered by

These right to be forgotten laws are subtle, they do not demand that the site hosting the Information take it down, but only that the search engines remove them from their indexes.

This could lead to someone comparing Google searches with their own crawl of a newspaper’s archives, and identifying people who have used the right to be forgotten to remove stuff from the search engines.

Anonymous Coward says:

Re: Re: There is a bigger loss to be suffered by

New business opportunity – the “right to be remembered”

I’ll start a database tracking all ‘right to be forgotten’ requests and compile them all in one place (along with copies of anything asked to be ‘forgotten’, using the way-back machine if necessary).

I’m sure a large database full of things that people don’t want to have exposed (remembered/published) would be a valuable commodity. I’ll add some ‘creative expression’ to the discussion of each item in order to establish my own COPYRIGHT on the information.

I think I just exposed the new XXAA business model (FUAA – Forgotten Usenet Association of America), so expect to see it coming to a censorious regime near you shortly.

Truck Fump…

Anonymous Coward says:

Re: Better to

Common misconception. Most of us Canadians don’t even speak or understand French. English is the default language for almost the entire country. Road signage and business storefronts are only required to be bilingual in Ottawa and Quebec. Government services are always available in French upon request, but you’ll probably have to listen to an English message and press 9 when the French voice tells you to “appuyer” it.

NotPublicThenForgetAboutIt says:

I see it differently

Individuals are not public figures and absolutely have the right to be forgotten.

Consider the multi millionaire lottery winner that won in court to remain anonymous, as becoming a public figure means people would forever be scheming to take those millions away.

Being digital doesn’t raise the standing. So much emphasis on digital… blah, it’s called a paper trail for a reason.

Anonymous Coward says:

Re: Re: Everyone deserves the right to be forgotten.

You said it. It must be so hard for Germans to keep living with that shame. Italians and Japanese, too. Fo’get about it, whassa matta fo’ you?

I know what I’ll do once this is passed in Canada. I’m gonna stop those fussy, persnickity native injuns from talking about residential schools. That’ll teach ’em to shame us with our own past!

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