A “Right to be Forgotten” in Canada?
A recent EU decision by the Court of Justice of the European Union (CJEU) has generated a lot of press since it involves a high profile company – Google – and a tantalizing concept of a “right to be forgotten”. The story stems from the efforts by a Spanish man to compel Google to remove search results that referred to the man’s prior financial history – in fact the references were to bankruptcy-related notices published by a Spanish newspaper years earlier. The online newspaper publication remains in place, but the CJEU’s decision touches on the indexing and display of the results in a Google search, which refer back to that online newspaper publication.
So what does this mean for Canada?
There has, as far as I am aware, no equivalent privacy-related decision relating to removal of search results by search engines in Canada. However, there are analogous rights in Canada for individuals to compel an organization to correct or delete personal information. And that would apply to the organization that has “collected, used or disclosed” the personal information.
In Canada, PIPEDA does contemplate the correction of personal information, the withdrawal of consent, and the deletion of personal information that has been collected. Those provisions still require the individual to make a request or a complaint in order to get a remedy.
In that sense the EU organization (in the EU context) in Google’s position then has to decide on the merits of that request or complaint, so the “right” may be subject to the interpretation of these subjective questions by a Google employee, considering all the different criteria that the EU decision has listed.
In Canada (in the PIPEDA context), the organization does not have to make the same kinds of assessments or value judgements – the question is simply whether the individual is withdrawing consent, or correcting information.
In the EU, the organization has to decide if “in all the circumstances” the info appears to be “inadequate, irrelevant or no longer relevant, or excessive” which requires the exercise of a lot more judgement. And more scope for disagreement.
How this is handled by Google, and how it may influence Canadian decisions on requests for removal of personal information, remains to be seen.