#CyberFLASH: Canada Pits Constitution Against Right to Be Forgotten

1297658073661_ORIGINALThe right to be forgotten may never make the leap across the Atlantic from the European Union to Canada.

Our neighbors to the north are willing to talk about reputational privacy and the right to be forgotten—the concept that individuals should be able to seek removal of online links to their personal data to protect their reputation. But any attempt to significantly regulate Internet speech will run smack-dab into the brick wall established by the freedom of expression guarantee in the Canadian Charter of Rights and Freedoms, privacy professionals told Bloomberg BNA.

Canadians may not be fully in synch with the U.S. populace’s general aversion to restrictions on personal liberty, but neither do they have the Europeans citizenry’s willingness to accept a strong national governance approach to privacy.

The back-and-forth between privacy and free speech rights is highlighted by the Officer of the Privacy Commissioner’s approach to the issue. In 2015, the privacy office named reputational privacy as on of it’s top priorities. To follow up, the privacy office conducted a national consultation regarding online reputational privacy. In January, the office published a discussion paper on reputational privacy.

Privacy Commissioner Daniel Therrien isn’t ready to publicly discuss the consultation’s results or how he will respond, as the process of reviewing submissions is still underway, agency spokesman Tobi Cohen said.

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#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an individual right to require an Internet search engine to remove links to content that the individual considers to be out of date, no longer accurate or simply irrelevant, regardless of whether the content is true or lawful.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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#CyberFLASH: Why Millennials Born In The Internet Age Will Never Be Forgotten

slide_349495_3739937_freeA thousand years from now, you will likely not be remembered, but you’ll be searchable.

Crumbs of your digital trail leave out traces of who you are, but it will be displayed through the warped glass of time.

Should you have the right to retain control over what is visible to the world?

The Internet is a sorting tool of information. It allows for a quick search of individuals, but it can easily distort or manipulate one’s viewpoint.

How things are sorted reflect traffic paths, but very few people stray from the main trail.

According to online ad network Chitika, the top listing on a Google search result will receive 33 percent of search traffic in the United States and Canada.

Only 8 percent of users click on to the second page of results.

So, popularity is king, but what if it’s inaccurate, personal or untrue material that is sorted first? What happens if you want it erased?

Do you have the right to be forgotten?

The March case of the suspended University of Oklahoma fraternity over a racist chant caught on video comes to mind.

If you Google the members of that group, undoubtedly it will show up on a search. Their names are cemented in history. 

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#CyberFLASH: Internet security a priority, Industry Minister James Moore tells Canada-U.S. business council

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WASHINGTON – Industry Minister James Moore says he would consider supporting a bill that would give Canadians the right to be forgotten on the Internet.

Moore said Wednesday privacy and security on the Internet is a priority and he would consider supporting a private members bill giving Canadians the right to have their private communications and other records permanently erased.

The right of an individual to have personal records erased from the Internet is being put into practice in the European Union where individuals can demand that information that could stigmatize them be removed from Internet searches.

“This is a whole new world,” Moore said during a panel session at a meeting of the Canadian American Business Council.

“It wouldn’t have been imagined six months or a year ago, but we are certainly paying attention to the debate that is happening in Europe and how legislators are going to react to court decisions.”

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