OPC says search engine de-indexing right exists in Canada

Canadians have the right to ask search engines to remove links to results in some cases, the Office of the Privacy Commissioner of Canada (OPC) said in a report released Friday, which concluded individuals can challenge the accuracy and completeness of, as well as the extent to which search results involving their name are up-to-date. “It’s a right to be forgotten, Canadian-style,” Allen Mendelsohn, who teaches internet law at the Faculty of Law at McGill University, agreed in a phone interview, though he noted de-indexing is narrower than how that right is currently interpreted in the European Union. In its draft report, the OPC said that it believes the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to search engines’ “indexing of online content and display of search results. As such, search engines must meet their obligations under the Act.” “Such challenges should be evaluated on a case-by-case basis, and decisions to remove links should take into account the right to freedom of expression and the public’s interest in the information remaining accessible,” the report said. If the challenge is successful, the result should be de-indexed, though in some cases it could also be flagged as inaccurate or incomplete or lowered in ranking so that it shows further down the list of results, it suggested. In cases where individuals can’t come to a resolution with the website or search engine, they can file a formal complaint with the OPC, the report said. The right to be forgotten is one aspect of the European Union’s upcoming General Data Protection Regulation (GDPR), which stands to affect Canadian practices and privacy rules. Mendelsohn said that the right to be forgotten, “especially the way it’s worded in the GDPR… it’s much broader than just asking search engines to remove links to it.” The right to be forgotten came up repeatedly during the House of Commons ethics committee’s review of PIPEDA last year, which heard arguments that Canada should implement a right to be forgotten, as well as those that such a right couldn’t survive a charter challenge. The OPC said that it considered those questions and in developing its position tried to respect both privacy and freedom of expression, but also recommended that Parliament examine the issue “to determine whether we have struck the right balance.” It said it believes the best way to achieve that balance is “by considering whether the accessibility of personal information is in the public interest. In general, where there is a sufficient public interest in the information remaining accessible, this will normally trump an individual’s desire to control access to their personal information that has been lawfully published online.” The OPC said that it wasn’t seeking to establish a new right, but instead looking at whether current Canadian law supports such a right. It concluded that search engines do fall under PIPEDA and they are “responsible for addressing requests to de-index results in accordance with their legal obligations under PIPEDA.” The report also noted that during its consultation, some argued that a court or oversight body should be responsible for such requests, “given the fundamental rights at stake.” But the OPC said that while “individuals and search engines should ultimately have access to review by an independent arbiter in contested cases, we consider it appropriate to have search engines providing the first level of review of a de-indexing request.” “Indeed, having search engines initially assess de-indexing requests arguably promotes, rather than hinders, access to justice and the rule of law by providing a practical and expedient remedy for individuals,” it argued. Canadian courts have considered requests involving the right to be forgotten. In June, the Supreme Court upheld a worldwide ban on search results of a company that allegedly infringed another’s products. Last year, a Federal Court judge ordered a foreign website to be taken down and some of its content removed from search engines. Mendelsohn pointed out that one way to survive a constitutional challenge is to “make something as narrow as possible,” as the OPC is doing in this case by specifically referring to de-indexing of search engines under certain circumstances as opposed to a wider right to be forgotten. However, he noted what the OPC released is a draft report of its interpretation, meaning that while it will spark discussion, it doesn’t have the force of law. “Even if it was a final report from the OPC, and you put it in front of Google and said ‘look, the OPC says that I have a right to de-index under these circumstances,’ Google could ignore it,” he noted. The OPC said it will consider stakeholder responses to its proposal and then “finalize its position and develop an action plan to put the new measures into practice.” The report also looked at scenarios where information is taken down entirely, as opposed to simply de-indexed in search engine results. It said individuals should have the right to take down information they themselves posted, such as on their social media accounts, but do not “have an unqualified right to remove” content posted, or re-posted, by someone else. However, they should have the right to challenge “the accuracy, completeness, and currency of the posted information,” the report said. It also said that there should be extra protections regarding content posted by and about youth, and that Parliament should consider enshrining some of those rights for minors in to law. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Bryson Masse at bmasse@thewirereport.ca

OPC says search engine de-indexing right exists in Canada

News | January 26, 2018

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OPC says search engine de-indexing right exists in Canada

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