A draft position announced by Canada's Office of the Privacy Commissioner (OPC) earlier this year has troubling implications for online freedom of expression and the right to receive information.
OPC says its position — which says individuals have a right to have certain information about them online corrected or deleted entirely — will enhance individuals’ control of their online reputation. But, in many cases, the policy’s actual effect will be to prevent Canadians from learning about matters of public concern because it could require search engines to remove certain search results in Canada, and even require websites to remove information entirely in some cases. OPC’s position pays lip service to the public interest in access to information while tilting the balance in favor of removal of search results.
Like the “right to be forgotten” in Europe, the OPC policy would impair the ability of news organizations and journalists to reach readers and inform the public. The internet is one of the most powerful tools for disseminating information to the public today. Members of the news media depend on an open internet to research and verify information and to inform readers around the world. In this digital world, search engines serve as the modern-day newsstand, allowing the public to seek out and access news.
If search engines are required to de-list, or remove, certain search results in Canada, the vast majority of the public would lose access to that information. Although the information may technically still be available online, many internet users would not know how to access it if they cannot find it through a search engine. (Of course, if a website is required to take down information altogether, as OPC has proposed in some cases, it will be entirely inaccessible to the public.) And de-listing search results not only prevents readers from finding information; it may actually mislead people into believing that the information does not exist.
While OPC justifies its position as necessary to allow people to protect their online reputations, individuals who are named in news stories of legitimate public interest may wish to suppress those stories, especially if they are cast in an unfavorable, unpopular, or controversial light. As the Reporters Committee noted in a case concerning the French “right to be forgotten,” the French privacy authority ordered Google to de-list a link to an article about a police chief accused of theft, even though he remained a public official in the United States.
News organizations in Europe have publicly documented many requests to remove their articles from search results as a result of the “right to be forgotten.” For example, hundreds of BBC stories have been delisted from Google search results, including reports about police officers charged with crimes. Similarly, the British newspaper The Telegraph reported that Google has delisted many of its stories, including a story about the former president of a professional association for lawyers who was “accused of inventing a phantom identity in order to have his former deputy expelled from the profession.”
According to The New York Times, it has also been forced to remove several of its articles from Google results in Europe, including a 2002 report that named three British companies — and the two men who controlled them — that had been ordered by a U.S. court to shut down websites they owned that sold nonexistent web addresses.
Throughout its history, Canada has protected journalists and the news media so that members of the public are informed. Next week, the Reporters Committee will submit comments to the OPC, urging it to adhere to Canada’s longstanding respect for freedom of expression, revisit its position, and reject a “right to be forgotten” in Canada. At the very least, OPC should provide additional guidance to search engines on how to implement any delisting requirements and make clear that search engines should err on the side of rejecting delisting requests, especially when public figures are involved. The OPC position, if adopted as it stands, would give a powerful tool to those who seek to censor, distort, suppress, and otherwise restrict the flow of information to the public.