HideTechdirt is off for the long weekend! We'll be back with our regular posts tomorrow.
HideTechdirt is off for the long weekend! We'll be back with our regular posts tomorrow.

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 This would generally refer to web pages that contain inaccurate, incomplete or outdated information.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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Gary (profile), 16 Oct 2018 @ 8:38am

    De-Index

    One of the strangest parts about de-listing this information is that this horrible, inaccurate data is still on the original website unchanged. If they feel the source is libelous or incorrect, that is the proper place to drop the hammer - not the intermediary. Google doesn't host any of this data.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2018 @ 10:54am

      Re: De-Index

      To play Devil's advocate:

      Google is a company that operates within Canada and provides services to users within Canada.

      The issue being addressed here is that many servers hosting libelous, outdated, incomplete or inaccurate information are located outside Canada, where Canadian law does not extend. So since Canada believes in the sovereignty of other nations, it is only requesting that data served to Canadians by companies operating in Canada be modified.

      Essentially, what this is saying is that "there is no metadata" when it comes to PII. Google hosts the snippets and results that imply the linkage, and hosts the link to the inaccurate information. Thus, if they know this information is wrong, it is their responsibility to make changes to their record to not distribute information known to be wrong.

      Of course, that's treating Google as if it were a data storage service instead of as a data publishing service -- PIPEDA is worded in such a manner that it doesn't recognize data publishing services; only individuals that either store or report on information.

      I'm optimistic that the courts will get this right. If they don't, it's time to contact my MP to get PIPEDA amended to be more clear in this area.

      reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 16 Oct 2018 @ 6:03pm

        Re: Re: De-Index

        It is accurate information that is most likely to attract right-to-be-forgotten suits-- from swindlers, crooked politicians, and deranged stalkers, among other lowlifes. From a business viewpoint, if Google lacks robust free-speech support from the public and US Congress, it would be easier for them to go along with hiding evildoers, to the great loss of the public.

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 17 Oct 2018 @ 2:31am

          Re: Re: Re: De-Index

          Agreed. The trouble with de-linking and de-indexing is that, once someone stumbles across the original content and links to it, the content gets re-indexed. You end up playing whack-a-mole.

          Better to contact the entities on which the wrong information is stored and ask them to delete it. I've been successful in getting troll posts removed by doing just that. Only one retained it because they wanted me to pay to get the most egregious parts removed. No dice, I put up a rebuttal and left it there. The troll's tactic backfired and I was promoted, not fired.

          It's why I disagree with the idea of a right to be forgotten.

          reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 18 Oct 2018 @ 6:33pm

        Re: Re: De-Index

        So, if Google.ca de-links the content but Google.us and Google.jp and Google.nz do not, what recourse does Canada have, exactly?

        Only Google.ca exists in Canada, and at least in the case of Google.us, there's the first amendment.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Nomor Adata, 16 Oct 2018 @ 10:07am

    MM's "unfathomable" is easily sounded: he just has a short line.

    (Sounding / fathoms are nautical terms. The old method was/is a weighted line with knots every six feet, counted as the line sank until weight hit bottom. "Mark Twain" for instance, was a call that the man on bow had thrown the line and found at least twelve feet of water, two or "twain" knots, enough for the broad shallow Mississippi River boats.)

    Anyhoo, problem is Masnick's inability to grasp the obvious, while muddying the water asserting high-sounding "concepts" are at risk:

    This is unfathomable if you believe in concepts like freedom of expression and freedom of the press.

    We'll still have those, PLUS a new-found "right to be forgotten" under stated conditions after court process. ALL that's required is for Google to check for a name before showing the results -- which is already done. -- Just try to find anything about "Eric Schmidt's" Globalist / Nazi links! QED. -- Of course, the elite don't want that known, let alone used by peasants.

    Corporations don't have ANY rights, not to exist, nor to keep a database. When interferes with a "natural" person's Rights, then it's the corporation that will have to endure -- here, the horror of removing some text. Masnick's perspective and wish is always that Google must not be limited in ANY way, and that "natural" persons must suffer.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2018 @ 10:17am

      Re: MM's "unfathomable" is easily sounded: he just has a short line.

      You can just say Jewish instead of dog whistling. You're not exactly fooling anyone.

      reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 16 Oct 2018 @ 10:28am

      Re: Mud, Troll

      So Troll - why in the sweet constitution's name do you blame Google for indexing this newspaper stories, and not the newspaper for actually publishing them, eh?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Oct 2018 @ 10:57am

        Re: Re: Mud, Troll

        Probably because the newspaper doesn't do business in Canada, and there are no Canadian citizens involved? Canada steps in and asserts law at the border.

        Not saying this is right, but this is likely why.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 16 Oct 2018 @ 11:16am

      Question: If convicted rapist Brock Turner asked Google to de-list every article that so much as mentions his crime (and his subsequent conviction), for what reason should Google be forced into complicity with hiding the legitimate fact that Brock Turner is a convicted rapist?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2018 @ 11:52am

      Re:member when you hung your self by your own petard?

      Techdirt Farms remembers.

      reply to this | link to this | view in chronology ]

    • identicon
      Dave P., 17 Oct 2018 @ 10:10am

      Re: MM's "unfathomable" is easily sounded: he just has a short line.

      This is total crap. Furthermore, b*llsh*t excreted by trolls and a certain orange president also applies. (I wonder who else that might also be applied to?) Facts are facts and should not be suppressed, full stop. How dare this debacle of a law say that there is a "right to be forgotten" world-wide. If indiscretions or crimes have been committed, gone through due process (which a certain troll on here hates and seems to ignore completely) and reported accurately, so be it. That's the perpetrator's problem, NOT a search engine's.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2018 @ 10:12am

    News reporting

    The thing that still baffles me about this is that anyone could possibly consider news reporting to be subject to "data protection" laws. [...] Data protection is supposed to be about things like databases of information on someone, not news articles about someone.

    When has it ever been found to apply to news reporting? This story is about a database referring to news articles (i.e. Google's search DB), not about redacting actual news articles. Let's describe the stupidity accurately at least.

    I don't see how this privacy law could be found to apply to incorrect information—by definition, it would not be personal data.

    reply to this | link to this | view in chronology ]

    • icon
      Graham Cobb (profile), 17 Oct 2018 @ 7:00am

      Re: News reporting

      Sorry, Mike, you are wrong to say this is anything to do with news reporting. Google is not a news reporter, it is an indexer. If the suggestion was that news reports should be taken down that would be completely different.

      There are many commercial companies that create dossiers on people (credit reference agencies, journalists, recruiters, private investigators, etc). They are regulated by law and, in some countries, there are laws limiting what data can be included in their dossiers (such as old credit data, expired prison sentences, etc). You can argue about whether those laws should exist but in many countries those laws do those exist.

      Google is a commercial company which competes against those companies by creating dossier of mentions on the Internet when you give them a name. As such, it should be bound by the same laws as its competitors: whether the laws are right or wrong.

      The issue is that Internet search for people is a very different thing than internet search for other things. Searching for people is, and should be, restricted by various privacy and personal data laws (different in different countries).

      I am not arguing for RTBF laws. But I am arguing that where such laws exist they apply to Google searches just as much as to any other form of personal information.

      However, they should not apply to searches made in other countries with different laws: the laws of the searcher should apply, not the laws of the object of the search.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 17 Oct 2018 @ 7:21am

        Re: Re: News reporting

        Assume you're right, Graham. Okay, how? This is a search engine indexing content that's made available online.

        It indexes what other entities have made available using an automated process, and therefore has neither knowledge or control over that information.

        If you want to keep such information out of the reach of search engines it should not be made available to the internet in the first place -- by those entities. It is not Google's (or Bing's, or DuckDuckGo's) job to decide which information does or doesn't belong on the internet, it's the entities storing that information.

        On the day that Google (or any other search engine) decides what does or doesn't get indexed prior to such information being made available online, Graham, you will have a point. Until that day arrives, I invite you to take the time to discover how a search engine actually works, and maybe even have a go at making one yourself. Then you'll realise how ridiculous your comment seems to someone with barely a passing knowledge of how the internet works. Basically, it works by matching words to what is available on the internet. How is it to know the difference between my bank account details and my Twitter account?

        reply to this | link to this | view in chronology ]

        • icon
          Graham Cobb (profile), 17 Oct 2018 @ 8:03am

          Re: Re: Re: News reporting

          The easiest way is to allow the person concerned to issue a form of "takedown" notice to Google. Yes they would need to pay people, possibly a lot of people, to manual assess these -- just as their competitors in the personal dossier business today have to. In fact, Google AI is almost certainly already good enough to apply most of these legal rules fairly automatically.

          P.S. Actually, in the 80's, I did start creating an internet search engine myself. This was for gopher sites and some other pre-WWW technologies. I stopped fairly quickly because it was hard, and other people in my company told me they were way ahead of me in developing something similar -- which eventually became Altavista.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Oct 2018 @ 10:01am

        Re: Re: News reporting

        >The issue is that Internet search for people

        Actually it is an Internet search for a name, and names are not unique. Sometime people with the same forename and surname live in the same house, or as neighbors. So while old criminal records etc. will remain indexed, if the subject leaves them well alone that will soon drop off of the first few pages of a search on a persons name, and maybe even for a more precise search

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2018 @ 10:17am

    This will stop as soon as they run against the first amendment in the US..

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2018 @ 10:42am

      Re:

      I think Google's choice will be to either allow Canadian courts to order global actions or to pull out of Canada. Since they are developing a special search engine for China, maybe they can do that for Canada. And Britain. And Spain. And ...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Oct 2018 @ 11:58am

        Re: Re:

        Since they are developing a special search engine for China, maybe they can do that for Canada.

        That's essentially what they did, and the Canadian courts didn't like it. People could still go to google.com instead of google.ca, and see these blocked results. Unlike China, Canada has been unwilling to block google.com.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Oct 2018 @ 12:05pm

          Re: Re: Re:

          As far as I'm concerned, if Canada's not willing to block google.com, they can suck on their own censoring [censored].

          reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 16 Oct 2018 @ 12:31pm

    Another one..

    "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."

    Interpretation..
    truth? vs criticism??
    Outdated vs Current actions??

    A human is a human, past is past unless its never changed. AND CHANGE ISNT EASY.. unless you do as ASKED by those that employed you..

    reply to this | link to this | view in chronology ]

  • identicon
    Andrew Blake, 16 Oct 2018 @ 2:45pm

    RTBF

    I support the efforts of the Canadian Government and others. This is not about choking free press. The articles still exist. Delinking just means you have to work to find them. Just like before the internet.

    A person's history should not EASILY follow them forever with just a few keystrokes.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 16 Oct 2018 @ 3:25pm

      A person's history should not EASILY follow them forever with just a few keystrokes.

      I will ask again the question I asked above: If convicted rapist Brock Turner asked Google to de-list every article that so much as mentions his crime (and his subsequent conviction), for what reason should Google be forced into complicity with hiding the legitimate fact that Brock Turner is a convicted rapist?

      reply to this | link to this | view in chronology ]

  • icon
    Vidiot (profile), 16 Oct 2018 @ 3:31pm

    Ironic... seeking forgetfulness on behalf of a nation which mostly says, "Eh?"

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 16 Oct 2018 @ 5:55pm

    replace google.com with google.us?

    How much would be lost if google.us were upgraded to assume the current capabilities of google.com with US First Amendment protections? Google.com could be left out there to attract all the World's censorship orders, from Canada and the EU, to China, Pakistan, and Sa'udi Arabia.

    Presumably it would be more acceptable for Canadian courts to block out google.us than google.com.

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 16 Oct 2018 @ 6:25pm

    Right-of-reply-- a better compromise

    (This recycles in part an unpublished letter to an editor.)

    To balance reputation and privacy against free speech and the public's right to know, the EU court's proposed blackout of Google searches
    http://online.wsj.com/news/articles/SB10001424052702303851804579559280623224964?mod=WSJ_hp_L EFTTopStories&mg=reno64-wsj
    is seriously defective-- a tool for swindlers, thieves, psychotics, crooked politicians and others to mug a blinded public again and again.

    A better remedy would be a top-placed "right of reply":
    Google should ensure that the *first* listed link for someone's name would be his official "right of reply" page where the target gives his answer to unfavorable mentions on other web pages. That could include brief "not me" comments about charges against others sharing his name.

    One of the EU plaintiffs was a Spanish doctor who wished to block reference to a malpractice case 20 years earlier. Under my remedy, his "right of reply" page could point out that this was a single incident over twenty years ago, and that a search of the open, First-Amendment-style Internet would confirm that no one had complained seriously about him since then.

    For those rubbished all over the Internet (and elsewhere) by a stalker, the "right of reply" page would be a perfect place to explain who the stalker was, their motive, and links to other Internet material showing that the stalker's sanity or honesty were doubtful.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 16 Oct 2018 @ 9:30pm

      Counterpoint: Anyone mentioned in the “right to reply” might have their names smeared by the replier in question. That might lead to something of an arms race between the aggrieved parties where they try to “out-reply” one another and the whole mess eventually resembles a bad forum thread (or a comments thread on Techdirt involving Hamilton and Blue).

      I agree that, in generally broad terms, a person deserves not to be defined by a single mistake in life. (If that “mistake” is a crime such as rape or murder…yeah, not so much with the pity there.) On the other hand, factual information about a person does not deserve to be memory-holed into oblivion, nor does it require someone to force Google into host someone else’s speech for the sake of “correcting the record”. I use the example of convicted rapist Brock Turner in this discussion for a reason, and I will do so again here: If he were granted this “right to reply”, what would stop him from telling a story about how he is not being a rapist, that he was caught (and ultimately convicted) of doing something he does not characterize as rape, and that the woman he raped is a liar? What standards would Google employ in hosting these “right to reply” pages, and who would determine those standards? How far could a “right to reply” page go in letting a replier’s point of view bend the truth into a pretzel so they can have “their say”?

      Your idea is noble in its intent—that, I will grant you. On a broad-strokes level, I can even agree with it. But if it were put into practice, a “right to reply” would be a nightmare of logistics, legalities, standards, and back-and-forth bullshittery that Google neither needs nor deserves. If you still believe otherwise, I need mention only one name to rest my case: Shiva Ayyadurai.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 17 Oct 2018 @ 5:57am

        Re:

        A better remedy would be a top-placed "right of reply": Google should ensure that the first listed link for someone's name would be his official "right of reply" page where the target gives his answer to unfavorable mentions on other web pages. That could include brief "not me" comments about charges against others sharing his name.

        Great idea in principle, but not so much in practice, namely since that's not how search engines actually work.

        As someone who was falsely smeared by a troll, I found that contacting the hosts where the misinformation was stored and providing proof that this was a reputation-wrecker troll having a nasty laugh was sufficient to get the troll posts down for the most part. The one site that wouldn't remove it without asking for money allows the other party to reply. I've left my rebuttal and never looked back.

        There is no need for a right to be forgotten. Reputable websites don't host troll posts, then make their victims pay to get them removed. If anyone is so sensitive that they get worked up over trolling, I'd say that's the problem, not the troll post. My advice: should anyone do such a thing to you, keep calm and carry on. Wild allegations may cause readers to check you out. Ensure there's something positive waiting for them on your blog, social media, and other accounts when they get there. If your own conduct is generally decent, that's what people will think you are, and they'll ignore the troll.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2018 @ 11:54pm

    RTFO

    I propose a right to fuck off, which is accompanied with 100 cane strokes for everyone who engages the censorious RTFB. Starting with the privacy commissioner.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories

Close

Email This

This feature is only available to registered users. Register or sign in to use it.