Do Canadians want the right to be forgotten?
No one wants an embarrassing story about themselves floating around online. But should individuals have the right to have that story removed from search results?
A new poll commissioned by the Canadian Journalism Foundation has found that Canadians are split on this issue. While there is overwhelming support for the idea that all news stories should remain searchable on online search engines, those polled were split on whether stories harmful to a person’s reputation should be taken out of search results.
Of the just over 1,500 people polled, 42 per cent were in support of the idea. Support was higher among women and older age groups, according to Maru/Matchbox, which conducted the survey on behalf of the CJF.
However, a majority of people said what was more important to them was Canadians’ access to accurate and lawful news found via search engines.
At a CJF event in Toronto on April 4, that coincided with the launch of the data, the debate about these issues was made very clear. Does the right to be forgotten, if one exists, infringe on the Charter right of freedom of the press? And does a right to be forgotten already exist in Canadian law?
David Fraser, a technology and privacy lawyer, argues there is no constitutional right to privacy. (Though inaccurate information can of course be fought under defamation law). However, Daniel Therrien, Privacy Commissioner of Canada, noted during his talk that the position of his office is that there is a right to de-indexing under current Canadian law. That doesn’t mean it’s as simple as asking to be removed from search results. First, who bears the responsibility for removing the information: The search engine or the media outlet?
There’s no easy answer, and it’s further complicated by just how you define what the press is. For example, is Google, a search engine, engaging in journalistic activity, legally speaking? Many people use Google to find news. Peter Fleischer, the global privacy counsel at Google, noted that while a EU court found that Google is not journalism, the court recognized they’ve become a tool people use to find news.
In Canada, there is actual legal precedent that has established a test to determine what constitutes engaging a journalistic activity. Keith D. Rose, a technology lawyer who works at McCarthy Tétrault, argued that Google likely wouldn’t meet that criteria — though debate remains on that point.
Google does respond to requests to remove information, but those requests are guided by laws in each jurisdiction. There is no right to be forgotten in the U.S. If Google gets a request from an American to remove something, the answer is no, according to Fleischer. There are also jurisdictional issues. Something removed in Europe might still be visible in Canada. This is because the negative implications for freedom of speech of total removal, worldwide, would be a huge.
However, Michael Geist, a privacy expert and law professor at the University of Ottawa, said that Canadians should be cautious about having any company reviewing cases and deciding what should be removed. Those polled seem to overwhelmingly favour legal intervention, with 60 per cent of those polled saying that courts should decide when a news story should be removed from a search engine, compared to 18 per cent who favoured search engines themselves making the decision.
A number of organizations are taking a closer look at how to address this issue. The National Newsmedia Council recently closed a survey of their membership organizations to find out how they deal with de-indexing requests, in the hopes of reporting best practices across organizations.
With files from Mitchell Thompson.
H.G. Watson was J-Source's managing editor from 2015 to 2018. She is a journalist based in Toronto. You can learn more about her at hgwatson.com.