Canadian Privacy Commissioner Goes To Court To Determine If Canada Can Force Google To Delete History
from the one-hopes-they-won't-get-this-wrong dept
Canada has been stumbling towards an EU-style “right to be forgotten” (RTBF) for quite some time now. There was a big case last year that not only said Google can be forced to remove links to certain information, but that it could be forced to do so globally (i.e., outside of just Canada). That was as a result of a specific lawsuit about specific information, but this year, a bigger exploration of the RTBF concept has been underway, as some have argued that Canada’s PIPEDA (Personal Information Protection and Electronic Documents Act) meant that Google should be forced to “de-link” articles on certain people’s name searches upon request (just like the EU’s RTBF).
A report from the Canadian Privacy Commissioner earlier this year argued that PIPEDA already provided such a right and the Privacy Commissioner Daniel Therrien has been stumping for this ever since. Google has — for obvious reasons — been expressing its position that this is ridiculous, saying that PIPEDA does not apply to de-linking individuals’ names from news articles, and further argued that requiring such a result would be unconstitutional.
While it’s clear that the Privacy Commissioner disagrees with Google, it has now asked the Canadian federal courts to weigh in:
Google asserts that PIPEDA does not apply in this context and that, if it does apply and requires the articles to be de-indexed, it would be unconstitutional.
Following public consultations, the OPC took the view that PIPEDA provides for a right to de-indexing ? which removes links from search results without deleting the content itself ? on request in certain cases. This would generally refer to web pages that contain inaccurate, incomplete or outdated information.
However, there is some uncertainty in the interpretation of the law.
In the circumstances, the most prudent approach is to ask the Federal Court to clarify the law before the OPC investigates other complaints into issues over which the office may not have jurisdiction if the court were to disagree with the OPC?s interpretation of the legislation.
A Notice of Application, filed today in Federal Court, seeks a determination on the preliminary issue of whether PIPEDA applies to the operation of Google?s search engine. In particular, the reference asks whether Google?s search engine service collects, uses or discloses personal information in the course of commercial activities and is therefore subject to PIPEDA. It also asks whether Google is exempt from PIPEDA because its purposes are exclusively journalistic or literary.
The thing that still baffles me about this is that anyone could possibly consider news reporting to be subject to “data protection” laws. This is unfathomable if you believe in concepts like freedom of expression and freedom of the press. Data protection is supposed to be about things like databases of information on someone, not news articles about someone. Yet, the EU mucked this up years ago, and now it’s spreading. From the way the Privacy Commissioner has framed the question, it seems like there’s a decent chance the court will rule against Google’s view on this, meaning that censorship of news articles on public individuals, and the blatant rewriting of history will be enabled across Canada.
And, even worse, because of the Canadian rulings saying that the RTBF rulings in Canada should be applied globally, Canada may soon be the place to go to literally try to delete history. What a shame.