Law Times

Law Times • march 19, 2018 Page 9 www.lawtimesnews.com 'There's some big issues at stake here' Right to be forgotten under debate BY MARG. BRUINEMAN For Law Times A recent position paper by the federal privacy commissioner is caus- ing consternation among lawyers. In January, the Office of the Privacy Commissioner of Can- ada indicated in its draft posi- tion paper on online reputation that de-indexing and source takedown are mechanisms that could be used to enhance a per- son's control over their online reputation, through the Person- al Information Protection and Electronic Documents Act. The position paper states that the existing privacy law identi- fies potential solutions, includ- ing the right to ask search en- gines to de-index web pages that include "inaccurate, incomplete or outdated information." David Elder of Stikeman El- liott LLP says that could create a great deal of work for search engines and put a lot of power in their hands. It also raises issues related to freedom of expression. De-indexing is when an on- line resource is removed from search engine results. Source takedown is the removal of the content from the internet. Elder, Stikeman's chief pri- vacy officer and chairman of its communications group in Ot- tawa, likens de-indexing to re- moving the card from the card catalogue at the library when the book itself is still available. It might make the source web- sites more difficult to locate and access, but it doesn't change the fact that they exist. "I think there are a lot of con- cerns there, both about history, but also for journalists, in par- ticular, the freedom of expres- sion," he says. Elder believes the 18-year-old PIPEDA was not intended to be used by people who want cer- tain references of themselves to disappear from online searches. He says if the law is applied to de-indexing search engines, it would be "severely offside." In the draft position paper, the commissioner indicated its aim is to balance freedom of expression and the privacy in- terests of individuals. It followed a consultation process that at- tracted 28 submissions. The commissioner's initiative falls on the heels of the "right to be forgotten" approach under European law. That right, ad- opted as the right to erasure, was embedded in the European Parliament's General Data Pro- tection Regulation. It prompted discussion in North America, but there are concerns that it im- pedes the value Canada places on the freedom of expression. Elder says that, during the privacy commissioner's consul- tation process, there were several submissions suggesting that the right to be forgotten would be disastrous. "In the proceedings, talking about managing online repu- tation, there were submissions that touched on the right to be forgotten, most of them saying this doesn't exist and if you ever tried to go here this would be di- sastrous. . . . But they seemed to have gone this way anyway," he says. The commissioner is now ac- cepting feedback until April 19. Elder suspects that if the pri- vacy commissioner's position in his draft position paper is adopt- ed, it will attract litigation. But such an important issue with its possible implications, he believes, should be addressed and decided upon by Parliament and not be determined by policy. University of Ottawa law pro- fessor Michael Geist, who focus- es on technology and privacy is- sues, also questions whether the issue of the right to be forgotten falls under the commissioner's powers. He says extending PIPEDA to all search engine activity is an issue when many searches are conducted for non-commercial purposes, because the law was intended to accommodate on- line commerce and applies solely to commercial activities. How- ever, Geist recognizes the need to explore issues of privacy and online reputation. "There's unquestionably a real issue here, to the extent that the privacy commissioner is raising awareness [about on- line reputation], trying to put the issues squarely on the table. I think that's a positive thing," he says. "I frankly think the privacy commissioner could have used this as an opportunity to high- light how the current set of pri- vacy rules are inadequate to deal with some of the emerging chal- lenges." From a practical perspective, he says, de-indexing a person's name may not adequately pro- vide the desired protection be- cause searches can be conducted in a different way. Instead of searching for the person's name, for instance, they might focus on the issue, such as bad landlords, to achieve the same result. "Instead, what we got was the commissioner trying to shoehorn a really challenging problem into existing law and I think in many ways it causes more problems than it solves," says Geist. Another concern is that the privacy commissioner's inter- pretation of the principal-based PIPEDA is too narrow to apply to internet searches. "For the most part, it works quite well and it's quite adaptable," says Shaun Brown of nNovation LLP in Ottawa. "I think certain issues around what search engines do with per- sonal information is a clear ex- ample of where our privacy leg- islation probably doesn't adapt very well. It's such a unique situ- ation." The additional problem is that a general rule under PIPEDA is the requirement of consent prior to collecting, using and disclosing personal infor- mation. So, if PIPEDA applies to search engine activity, consent should also apply, says Brown. There is concern that the Eu- ropean model places search en- gines in the role of adjudicators deciding what content should and shouldn't be made available and whether or not that infor- mation should be indexed. "I think there are some really valid concerns about making search engines the arbiters of those questions," says Brown. "I'm not even convinced if we should have a right to have personal information removed from the internet once it's pub- lished. . . . the right to be for- gotten can potentially cause so many more problems." He asks if the focus should rather be on other laws, such as defamation, to prevent the pub- lication of false and misleading information about people. He also raises the possibility that allowing the de-indexing approach under the federal pri- vacy legislation could attract the Charter challenge that many have been anticipating since PIPEDA was introduced. "It's far from clear that PIPEDA would survive a chal- lenge to rely on the federal au- thorities of trade and commerce power," says Brown. And if that happens, the ju- risdiction of PIPEDA could be altered, given that some prov- inces have their own privacy leg- islation. "That's a question that's al- ways rumbling under the sur- face whenever we see PIPEDA being applied in a unique or more aggressive manner. That's really what we're seeing here," says Brown. If that were to happen, he says, Canada's anti-spam legis- lation could also be vulnerable because it relies on the same au- thority. "If either one of those laws were to be challenged on con- stitutionality, that would almost certainly have implications on the other," says Brown. "There's some big issues at stake here." LT FOCUS David Elder says the Personal Information Protection and Electronic Documents Act was not intended to be used by people who want certain references of themselves to disappear from online searches. Every time you refer a client to our law firm, you are putting your reputation on the line. DAVID PAYNE | DAVID MACDONALD | MICHAEL BENNETT Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. With a group of 30 civil litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral, and look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com IT IS ALL ABOUT TRUST WELL PLACED. Untitled-1 1 2018-03-13 8:43 AM

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