The European Court of Justice’s recent affirmation of the EU’s ‘right to be forgotten’ has stirred intense debate and stoked fears about the future regulation of the internet; one journalist went so far as to identify the decision as a shift towards Orwellian control over information.  The case centered around Costeja Gonzalez of Spain and his request that Google remove a link to 36-word article from 1998, which detailed the repossession of his home to satisfy his debts.

In the aftermath of the ruling, Google has been bombarded with similar requests from thousands of individuals, ranging from ex-politicians to convicted pedophiles. This has predictably caused an administrative nightmare for Google, which is scrambling to figure out how to process these requests. Whether European courts will be similarly overwhelmed has yet to be seen, but this prospect is tempered by the irony that a requester must first air his or her dirty laundry in the most public manner imaginable before having it removed from the digital clothesline.

But what is the impact on Canada? Could a similar law pass muster in our own legal system? The decision could have far-reaching effects that could affect Canadian companies doing business in the EU. Such was the threshold used by the ECJ: data processors, whether operating inside the EU or not, fall under this law if they or their subsidiaries economically benefit in the EU from their data-processing services. But the decision leaves several unanswered questions: How directly must the data processing be tied to economic benefits before falling under this law? Must data processors remove links from searches in the EU, or searches conducted around the globe? What about open-source software with contributors from inside and outside the EU? It may be years before the implications of this case are fully understood and appreciated.

Fears over whether a home-grown law could take shape may be unwarranted. The right to privacy is selectively protected in our Charter of Rights and Freedoms, such as the right to be free from unreasonable search and seizure. Freedom of expression, on the other hand, has been generously interpreted and applied by Canadian courts: it is informed by listener’s interests and courts are moving away from limiting the protection of economic expression.

And yet, a Canadian equivalent is not out of the realm of possibility; privacy concerns have been enough to sink federal bills aimed at strengthening state surveillance. Should Parliament or a provincial legislature decide to pass such a law, it would have to be saved under section 1 of the Charter as a reasonable limit that can be demonstrably justified in a free and democratic society. The Charter jurisprudence indicates that courts will generally be deferential to a government faced with competing social and economic interests, and nowhere is this balancing act better illustrated than the under the right to be forgotten.

Freedom of speech and privacy interests are continuing to collide.

Aaron Lemkow