On January 26, 2018, the Office of the Privacy Commissioner of Canada ("OPC") published its Draft Position on Online Reputation in conjunction with a Notice of Consultation and Call for Comments on this position. This Draft Position follows a 2016 consultation and call for essays on this subject.
In this Draft Position, the OPC proposes solutions that it believes balance freedom of expression and the privacy interests of individuals following feedback from stakeholders and the Canadian public that while they recognize the benefits of participating in the online world, they are also increasingly concerned about their online reputation.
In order to address these concerns, the Draft Position has identified solutions, discussed below, including de-indexing and source amendment (or "takedown") which share similarities with the "Right to be Forgotten" created by a 2014 decision of the Court of Justice of the European Union as well as the "Right to Erasure" included in the upcoming EU General Data Protection Regulation (known as the "GDPR").
De-Indexing by Search Engines
Search Engines Conduct Commercial Activities
In the Draft Position, the OPC expresses its view that the activity of indexing webpages containing personal information and displaying links to these pages in search results constitutes a collection, use and disclosure of personal information as regulated by the Personal Information Protection and Electronic Documents Act ("PIPEDA"). Search engines conduct "commercial activities" even when their services are provided for free, since most of them display advertisements alongside search results to generate revenue.
Data Accuracy Principle
Principle 4.6 of Schedule 1 of PIPEDA requires that personal information "be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used," and Principle 4.9 grants individuals the right to challenge the accuracy and completeness of their personal information and have their personal information amended. The OPC articulated the view that if an individual is able to successfully challenge the accuracy, completeness or currency of the results generated by a search for their name, then the results returned should be amended. This means that either the search engine should de-index the offending result and remove the link or in some cases, it should lower the ranking of a result or flag it as inaccurate or incomplete. The OPC acknowledges that not every single request will warrant de-indexing of the page, and that each request must be considered taking into account the public interest in having the information remain accessible.
Referring to the "appropriate purposes for a reasonable person" requirement of subsection 5(3) of PIPEDA, the Draft Position mentions that there are certain limited circumstances in which a reasonable person would not consider it appropriate that an individual's name be associated by a search engine with specific content containing personal information. This would be the case where this association "may cause significant harm to the individual, and there is either no public interest associated with the display of the search result, or the harm, considering its magnitude and likelihood of occurrence, outweighs any public interest."
Public Interest Test
The Draft Position lists factors that should be considered by a search engine to determine whether there is a "public interest" in the content remaining indexed. These include: (i) whether the individual concerned is a public figure (e.g. a public office holder, a politician, a prominent businessperson); (ii) whether the information at issue relates to a matter of public controversy or debate; (iii) whether the information relates to an individual's private life as opposed to, for example, their professional or working life; (iv) whether the information concerns a criminal offence for which the individual has been given a discharge, a pardon, or a record suspension; and, (v) whether the information relates to a minor.
Answers to Stakeholder Concerns
It should be noted that BLG Partner and article co-author Éloïse Gratton submitted her comments as part of the 2016 consultation, analyzing whether importing a right to be forgotten — which would allow individuals to stop search engines from providing links to information deemed irrelevant, no longer relevant, inadequate or excessive — would be advisable in Canada. The submission warned against entrusting private entities with the tasks of arbitrating fundamental rights and values and determining what is in the public interest, with little or no government or judicial oversight, and also raised other concerns.
The OPC in its Draft Position responded to some of the concerns and challenges raised by various stakeholders during the 2016 consultation with respect to de-indexing, which are presented below:
- Ineffectiveness due to the underlying content remaining available. On this issue, the OPC articulated the view that de-indexing will nonetheless have a significant positive impact, despite the fact that the underlying content remains available.
- Inappropriateness of private sector organizations having to make decisions balancing privacy rights against the right to expression. The OPC responded to this concern by mentioning that organizations already engage in such balancing measures, that search engines in particular already have mechanisms in place to evaluate de-indexing requests and remove potential harmful or illegal content from their search results, and that PIPEDA requires that organizations act as an initial responder under Principle 4.10.2 which mandates organizations to "put procedures in place to receive and respond to complaints or inquiries about their policies and practices relating to the handling of personal information".
- Lack of representation for the public interest in de-indexing requests since web publishers would not be notified of such requests (under the EU de-indexing procedure). The OPC recognized that there are cases where a search engine may consider it helpful to obtain input from the publisher or to allow it to object to the request, but mentioned that search engines should ultimately establish appropriate mechanisms to address this issue, while also noting that this point deserved further consideration.
- De-indexing would create a burden on search engines. The OPC weighed this concern, noting that search engines are in the business of making information largely available, often generate substantial revenues from doing so, and that Canadians should have access to a mechanism to challenge compliance with PIPEDA with respect to search results.
- Territorial scope. On this issue, the OPC mentioned that de-indexing may be ineffective if only applied on the Canadian domain of a search engine, as information would still remain easily accessible via the .com or country-specific domains. However, because de-indexing results globally could potentially unduly interfere with the sovereignty of other countries, the OPC suggests that geo-fencing techniques should be applied to ensure that de-indexing of search results is limited to searches originating from within Canada (e.g. by limiting any de-indexing to searches performed from a Canadian IP address).
Source amendments (or takedowns) are procedures where the information is modified or removed entirely at its source. The OPC noted that it is clearly a stronger privacy protection measure than de-indexing, but can pose a much greater challenge to the freedom of expression. The Draft Position draws distinctions between cases where the information is provided by the individual making the amendment/takedown request and situations where information was provided by others.
The Draft Position notes that PIPEDA grants individuals the right to withdraw consent and requires that personal information that is no longer needed be destroyed, erased or made anonymous and that, therefore, the "ability to delete self-posted information should be near-absolute, except to the extent that it is subject to contractual restrictions" (in the case of youth, it should not be affected by contractual limitations) and not be subject to a public interest test.
Information Provided by Others
According to the OPC, PIPEDA does not provide unqualified right to remove content provided to an organization by someone other than the subject (except in the case of youth, where the right to removal should be as close to absolute as possible), but that an individual may challenge information posted about them by another individual under the principles of accuracy and appropriateness. This would translate to individuals being provided with a mechanism to allow them to challenge demonstrably inaccurate, incomplete or out-of-date information and have it amended.
In the special case of youth, the Draft Position recommends that Parliament consider providing youth with some ability, upon reaching the age of majority, to obtain the removal of information posted about them by their parents or guardians.
The Draft Position reiterates the view, first articulated by the OPC in its Report on Consent, that children should be educated about privacy at an early age. With respect to online reputation specifically, the OPC suggests educating individuals on existing mechanisms available to control reputation (such as takedown mechanisms and privacy settings) and emerging privacy-enhancing technologies, as well as "ensuring that education messaging includes additional emphasis on the importance of thinking about the potential impacts of one's actions on all relevant parties." The OPC also mentions that Canadians should be educated about the fact that search results do not always present a complete picture of an individual.
In addition to recommending that Parliament consider the issue of the appropriate balance between privacy rights and freedom of expression, the Draft Position reiterates requests the OPC made in its 2017 Report on Consent with respect to amending PIPEDA to provide the OPC with stronger enforcement powers, such as order-making and imposing fines, and allowing it to proactively examine how organizations are responding to de-indexing requests.
The OPC acknowledges that the ability to request de-indexing and source takedown of information, which are part of the Canadian framework according to the OPC, share similarities with the EU's "Right to be Forgotten" and "Right to Erasure". The OPC nonetheless specifically states in this Draft Position that it does not import the EU framework into Canada. According to the OPC, this report is rather an interpretation of current Canadian law and the remedies related to online reputation which can be found therein. While this Draft Position is a work in progress, some have already raised their concerns with the OPC's position on the issue of de-indexing.
Organizations that wish to submit comments on the Draft Position have until April 19, 2018 to do so.