Canada should consider ‘right to be forgotten’: former privacy commish

OTTAWA — Privacy experts raised the idea of a Canadian “right to be forgotten” in front of a House of Commons committee studying the Personal Information Protection and Electronic Documents Act (PIPEDA) Tuesday, though they disagreed about the incorporation of the concept into Canadian law. “It needs to have parameters so that it does not encroach neither on the right to know, the freedom of access to information, nor freedom of expression. But there is… definitely a way to find that right spot,” said Chantal Bernier, counsel at Dentons Canada’s global privacy and cybersecurity group and former interim privacy commissioner of Canada, in response to a question about the public interest in accessing information that individuals may want to have removed. Bernier suggested the committee explore the idea of enshrining in federal law a right to be forgotten, or a “right to erasure of certain information” based on the European model. In the European Union, a 2014 court ruling began requiring search engines to remove information that is “inaccurate, inadequate, irrelevant or excessive” upon request, though not all such requests are granted. “Such a provision would reduce the dissemination of personal information harmful to reputation and therefore would add some protection,” she said, adding such a right should be “strictly framed” to apply “only to any display of personal data declared by a court as a violation to the right to privacy.” The Supreme Court is currently considering a case centering on whether a Canadian court can order a worldwide ban on websites appearing on Alphabet Inc.’s Google search engine. Its decision will help clarify how a right to be forgotten is viewed under Canadian law, but in the meantime, the precedent set in the initial case was recently used by a Canadian federal judge to order links from a foreign website taken down from search engines around the world because they violated PIPEDA. Robert Dickson, Saskatchewan’s former information and privacy commissioner, said during his appearance in front of the Ethics committee he was against imposing a right to be forgotten. “I simply don’t think it could survive a charter challenge,” he said. “I think freedom of expression in the limits what can be done. If you cannot compel a media outlet to take down content, then I contend you cannot stop a search engine from with the world that content exists.” Bernier said the right to be forgotten is one of the updates Canada needs to make to its privacy law in order to maintain its adequacy status under new European Union data protection regulations, set to come into force in 2018. Canada currently has a status “which allows Canadian companies to receive European data without any specific further authorization. It’s a competitive advantage that is critical,” she said in French, noting Canada is the only North American country to hold this status. That is now is at risk because the new regulations require that status to be reviewed every four years, and Canada’s laws will be assessed based on the new EU rules, which are “very different, standard-wise, from present Canadian legislation.” Bernier also said the federal privacy commissioner should have more enforcement powers, given that the powers of the Canadian federal commissioner lag behind international counterparts, which “can impose fines of millions of dollars” where the Canadian commissioner can only make recommendations. Dickson said he was also in favour of giving the federal privacy commissioner order-making power, as did John Lawford, executive director of the Public Interest Advocacy Centre (PIAC). “The privacy commissioner of Canada needs real enforcement powers, including a mandatory order-making powers, and … a fining power,” Lawford said. “The OPC is up against the biggest corporations in the world right now and needs tools. It is frankly embarrassing that provincial privacy commissioners have this power and not the office of the privacy commissioner.” — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Charelle Evelyn at cevelyn@thewirereport.ca

Canada should consider ‘right to be forgotten’: former privacy commish

Broadcast | February 15, 2017

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Canada should consider ‘right to be forgotten’: former privacy commish

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