Paying for oblivion: legal and commercial aspects of the right to be forgotten in Canada

In an attempt to address this problem, the courts of the European Union recently implemented the “right to be forgotten” ruling. This right permits individuals to require search engines not to display a hyperlink to a Website where the information is outdated and is of no public interest. In the U.S., the very broad protection of freedom of expression guaranteed by the Constitution is an obstacle to the development of similar legal solutions.

The policies of the major search engines generally state that they are not responsible for the content of the results pages. It is only in cases of certain specific identifiers or sexually explicit images posted without consent that a hyperlink can be delisted. Search engine operators also claim they comply with laws requiring the removal of content in the countries where they operate. In addition, they offer EU residents a form on which they can make a request under the European “right to be forgotten.” Given the number of requests for delisting they could be faced with, the transparency demonstrated by search engine operators is less than complete.

A few Canadian companies offer online reputation repair services. Their main task is to try to outsmart the algorithms of search engines in order to modify the results pages containing a person’s name. This can be a complex process and one that is expensive for consumers.

Canadian law sometimes offers consumers the opportunity to request companies that store their data to delete it. Canadians also have recourse against publications that illegally violate their privacy or reputation. Although it appears doubtful that Canadian laws on privacy protection can be interpreted in the same way as in Europe, online intermediaries can in certain cases be held liable for illegal content that they disseminate. Finally, deciding just how far search engine services should be held accountable for the results of their algorithms is no easy matter.

The Canadian legal framework does not address all the difficulties raised by Web hypermnesia, and access to justice is inadequate. However, importing the “right to be forgotten” into Canada is a measure whose efficacy seems limited and threatens the quality of Web search services. The Canadian approach to the issue should be more nuanced, and consider a range of ways of implementing digital oblivion. Search engines should widen the criteria for delisting in their policies in order to tackle situations that have the potential for causing serious harm. However, it is up to Canadian society to democratically determine the limits of forgetting. To achieve this, it seems essential to ensure that the practices of search engine operators are transparent. Finally, part of the solution will also depend on individual behaviour.