Right to be forgotten – helps you become invisible in Canada

Can you ask a website or a blog to remove your information? In this digital age, can you choose to ghost your online presence? Does Canada recognize people’s right to be forgotten?

In 2015, a Swiss-based medical company used the photo of a child without her mother’s consent to propagate pre-natal tests for down syndrome. It was a shocking incident as the personal information of the child who was a Canadian citizen went viral on social media. What remedies did the family have under Canadian law to remove the content about their child?

What is the Right to be forgotten?

The right to be forgotten is a civil right by which an individual can request all his/her personal information be removed from the internet. It is also referred to as the right of erasure. However, some believe that there is a slight difference between the two.  The right to erasure essentially requires the organization to delete the information whereas the right to be forgotten mostly directs the search engines to delist the information. These distinctions are fading away and the two rights are often seen over-lapping and co-existing.

In the EU, the right has been codified under GDPR rules. As per Article 17 of the General Data Protection Regulation (GDPR), an individual has the right to get his personal information erased from public records, if certain circumstances are met. The right enables the individual to protect his/her personal information when the consent is withdrawn, information is no longer necessary, there are no overriding legitimate interests of the organization, information was achieved unlawfully, there is a legal ruling to the effect, and a few other circumstances. GDPR applies to Canadian companies working in Europe, but what is the position back home?

Canadian Jurisprudence

Canada does not recognize the right to be forgotten formally but the Personal Information Protection and Electronic Documents Act (PIPEDA) ensures some level of protection.

Under PIPEDA, the private sector organizations must follow certain rules when they handle personal information in the course of their commercial activities. PIPEDA mandates organizations to obtain individual’s consent when they collect, use or disclose that individual’s personal information. The Act grants people the right to access their personal information held by an organization. They also have the right to challenge its accuracy or withdraw their consent. The individual can complain to the Privacy Commissioner if the organization fails to adhere to the rules laid down under the Act.

There were several instances where individuals have requested their personal information to be erased from the internet. In the event, the organization fails to adhere to their requests. The formal recourse is to approach the Privacy Commissioner. If the order of the Commissioner is not implemented by the website, the parties may seek court intervention. In Google Inc. v. Equustek, the Canadian court issued a worldwide injunction to Google for delisting certain websites. Similarly in A.T. v. Globe24h.com, the federal court directed the removal of all Canadian court decisions from a website that contained personal information of litigants.

Although PIPEDA is getting complainants relief, there are several issues that need to be addressed when seeking remedy under PIPEDA. First, most search engines are not Canadian entities and jurisdictional concerns need to be addressed. Secondly, the activity performed by the website must be of commercial nature. Thirdly, there is always a concern whether the right to online reputation is taking precedence over charter rights. Lastly, the reposting of content on the internet makes it difficult to enforce orders. For instance, the content may be removed from one website but it can be still viewed on other web portals.

Other Remedies- 

Another popular recourse is to file defamation against the organization publishing frivolous or wrongful information about a victim. Moreover, privacy tort claims can be filed against the publication of embarrassing private acts.

Right to be forgotten v. Right to be freedom of expression:

In Canada, the right to be forgotten needs to be balanced with the right to freedom of expression. In Reference re subsection 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, 2019 FC 261 (CanLII), while the court dealt with the issue of applicability of PIPEDA on search engines, it also discussed the principle of the right to be forgotten and online reputation. However, it observed that the right to be forgotten is yet to be implemented and codified in Canada.

Moreover, in Reference re Subsection 18.3(1) of the Federal Courts Act, 2019 FC 957, the court affirmed the view that the right to be forgotten “faces a challenging balancing of rights”. If such a mechanism was to be considered in Canada, there would need to be a careful balancing with other societal values, such as the right to freedom of expression, which is guaranteed under the Charter.

Unless the right to be forgotten is legislatively incorporated the road ahead seems to be uncertain. The proposals to modernize PIPEDA, give greater autonomy to individuals. The digital charter and reforms aim to strengthen the individuals’ rights to maintain their online reputation in certain ways.  The reforms empower individuals to request the deletion of personal information, with some caveats. Thus, ensuring basic rights of integrity, privacy, and self-respect. This is particularly significant for youth, who might wish to delete some of their online personal information, later in life.

Conclusion

In this technological age, the online identity of an individual is gradually over-powering their real self. While it is sometimes important to publish the personal information of a person, the individual cannot be stripped of his/her right to be forgotten.  The proposed changes to privacy law address the concerns but its implementation would be challenging, especially when the information bounces from one source to other on the internet. Additionally, in the globalized world, it would be interesting to see compliance of orders by search engines that have servers in foreign jurisdictions.

photo credits: Computer photo created by freepik – www.freepik.com