#CyberFLASH: We shouldn’t have a right to be forgotten

Online Privacy ConceptThe next battleground in the tussle between privacy and freedom of expression is being prepared this week. The deadline for submitting papers and essays to the Office of the Privacy Commissioner of Canada on the topic of “online reputation” has now passed.

For many, this is the beginning of the discussion about whether there is or should be a “right to be forgotten” in Canadian law. In a nutshell, the right to be forgotten is an individual right to require an Internet search engine to remove links to content that the individual considers to be out of date, no longer accurate or simply irrelevant, regardless of whether the content is true or lawful. While the link is removed, the content is untouched.

The right to be forgotten first became widely known following a decision handed down by the top court in Europe, which ordered Google to no longer link to a particular newspaper article in Spain’s La Vanguardia. The article was 12 years old and referred to a public auction being held for the repayment of social-security debts. Most importantly, it named the Spanish individual who owned the properties and the article ranked highly in a search on his name. That individual, who ironically has become famous for trying to be forgotten, complained to La Vanguardia, to Google and to the privacy regulator in Spain. While the regulator could not touch the newspaper, the European Court of Justice determined that European law includes a “right to be forgotten” and that Google had to remove the listing.

It is not surprising that the Privacy Commissioner wants to discuss whether our laws include or should include such a right. While it is an important discussion to have, the answer is very likely no: We cannot shoehorn such a right into our current privacy laws and any new laws would not withstand a Charter challenge. But even if the government were inclined to try, the European model should be off the table for a range of reasons.

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