Right to Be Forgotten Referred to Federal Court

The professed right to be forgotten, now placed on the global stage with The EU General Data Protection Regulation (GDPR) and scrutiny by the Court of Justice on extraterritorial application, may finally get some judicial ruling on the matter in Canada.

This week, the Office of the Privacy Commissioner of Canada announced they have filed a Notice of Application to the Federal Court to weigh in on the many challenges around implementing this right under Personal Information Protection and Electronic Documents Act (PIPEDA),

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.

While Google has also raised the issue of whether a requirement to de-index under PIPEDA would be compliant with s. 2(b) of the Charter, the OPC has decided not to refer this issue to the Court at this stage. The Charter issue may not need to be addressed depending on how the reference questions are answered.

The Charter issue is also highly fact based and would require an assessment of the facts of the complaint, making it inappropriate for a reference.

The reference, likely brought under s. 320 of the Federal Court Rules, follows the draft report by the Privacy Commissioner which took the position that PIPEDA should provide a right to de-indexing of outdated, inaccurate or sensitive information. However, this conclusion drew some criticism over the interpretation of the Act, and how this could be implemented.

What is apparent from this announcement is that there have been complaints under PIPEDA to the Privacy Commissioner over de-indexing requests, which will understandably be stayed until the conclusion of the reference.

The online presentation of information, especially where it may not provide a complete picture, is outdated, or is simply inaccurate, is likely the primary issue of privacy in modern society. Legislative initiatives to address this in Canada would not likely occur any time in the foreseeable future, so this reference will have paramount importance in helping to settle the future of this potential right.

Comments

  1. David Collier-Brown

    It’s a positive development, but the discussion of outdated, “forgettable” information misses a major point: publishing sites control not just if the material is available to visitors, but also if it is to be indexed as current by search engines. That arguably makes the current PIPEDA sufficient to order de-indexing at the source.

    I’ve describes it briefly here, https://leaflessca.wordpress.com/2018/03/28/de-indexing-unexpectedly-solved/ and made the same point to the Commission’s request for comments.

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