E.U. decision won’t affect privacy commissioner work on right to forget in Canada

Canada’s privacy commissioner doesn’t feel the decision coming out of E.U.’s top court on the ‘Right to be forgotten’ case will affect work that is being put forward in Canada.

“We do not think today’s ECJ decision affects this position in any way. On the issue of territorial scope, the draft position of our Office was that that geo-fencing techniques should be applied so that de-indexing of search results is limited to searches originating from within Canada,” a spokesperson from the Office of the Privacy Commissioner wrote in an email to MobileSyrup.

On Tuesday, September 24th, the European Court of Justice (ECJ) ruled that Google does not have to remove links to sensitive information in all versions of its search engine worldwide. The court ruled that the search giant must only remove links in versions meant for use in E.U. member states.

“There is no obligation under E.U. law for a search engine operator who grants a request for de-referencing made by a data subject…to carry out such a de-referencing on all the versions of its search engine,” the court said.

Canada’s Office of the Privacy Commissioner (OPC) has been involved in something similar in Canada and filed a Notice of Application with the Federal Court in October 2018 to seek clarity on whether Google’s search engine is subject to federal privacy law when it indexes web pages and presents search results in response to queries of a person’s name.

“We have asked the Federal Court to consider the preliminary issue of whether federal privacy law applies to Google’s search engine service in the context of a complaint involving an individual who alleges Google contravened the Personal Information Protection an Electronic Documents Act (PIPEDA) by prominently displaying links to online news articles about him when his name is searched,” the spokesperson wrote.

Indexing refers to the practice of including webpages and links in search results. De-indexing refers to the process by which individuals can request that search engines — like Google, Bing and Yahoo — remove results when an individual’s name is used in the search.

The commissioner, Daniel Therrien, has held a strong position on Canadians being able to access the internet without fearing that their reputations will be ruined as a result. He has argued that information that is found can often be taken out of context and can be replicable and difficult to delete.

Draft position paper will be finalized after reference proceeding

A draft policy position has been in the development by the OPC after a public consultation on online reputation took place.

The spokesperson for the OPC said that the draft position paper will not be finalized “until the conclusion of the reference proceeding.”

“The commissioner has said that his goal is to create an environment where individuals may use the internet to explore their interests and develop as persons without fear that their digital trace will lead to unfair treatment,” the spokesperson wrote.

As of now, Google has brought a motion seeking to have the reference expanded. The court has dismissed the motion, Google has appealed it and the court then dismissed the appeal. The spokesperson explained that at the moment the court is “dealing with certain procedural matters” with respect to motions by Google “to introduce additional background evidence.”

“After these matters are resolved, we expect the proceeding to move toward a hearing on the merits of the reference questions,” the spokesperson noted.

Those questions are:

  • “Does Google, in the operation of its search engine service, collect, use or disclose personal information within the meaning of PIPEDA when it indexes webpages and presents search results in response to searches of someone’s name?”
  • “Is the operation of Google’s search engine service excluded from the application of PIPEDA because it involves the collection, use or disclosure of personal information for journalistic, artistic or literary purposes?”