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
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
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
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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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