Canada: The Internet Never Forgets: Google Inc.'S "Right To Be Forgotten" EU Ruling And Its Implications In Canada

Co-authored by: Michelle Tam, Student-at-Law

In May of this year, the Court of Justice of the European Union ("CJEU") issued a groundbreaking decision for online privacy rights in Google Inc. v. Agencia Espanola de Proteccion de Datos ("Google v AEPD")1. The CJEU ruled that European Union ("EU") citizens have the right to require the erasure of inadequate, irrelevant or out-dated information from search engines, concluding that Google had an obligation to remove such data from its Internet search results. The ruling placed surprisingly onerous obligations on Google and sent shockwaves throughout the technology community. It raises significant implications for online privacy laws in the EU and questions of censorship and the limits on freedom of information. The privacy right at the heart of the decision has become widely known as the "right to be forgotten."

While Canadian privacy laws already give individuals the right to request their online information removed, it is unlikely, and may not even be necessary, that a similar right will emerge in Canada where search engine operators become responsible for protecting and removing an individual's personal data.

Background of Google v AEPD

Mr. Costeja Gonzalez, a Spanish national, filed a complaint in 2010 with the Spanish Data Protection Agency ("SDPA") against the publisher of a Spanish daily newspaper, La Vanguardia Ediciones SL, Google Spain and Google Inc.2 Mr. Gonzalez argued that Google's search engine returned query results of his name that linked to La Vanguardia's newspaper articles from 1998. These pages disclosed announcements from a real-estate auction related to the recovery of Mr. Gonzalez's social security debts.

The complaint asserted that Mr. Gonzalez had a right to privacy with respect to his personal information because the out-dated articles related to proceedings from 12 years prior that had been fully resolved. Mr. Gonzalez applied for an order that the original publisher (La Vanguardia) or the search engines (Google Spain or Google Inc.) be required to remove, alter or conceal the pages and his personal data such that the information no longer appeared in search results with his name.

The SDPA first rejected Mr. Gonzalez' claim in regard to La Vanguardia, ruling that the newspaper articles were legally published. But the SDPA agreed that Google Inc. and Google Spain must withdraw Mr. Gonzalez's personal information relating to those proceedings from its index and search results. Google brought an appeal to the National High Court of Spain who referred a series of questions to the CJEU, the highest court in the EU.

The Right to be Forgotten in EU

The CJEU's final ruling stems from the EU's highly protected privacy rights that are enshrined in the European Convention on Human Rights3and have been interpreted broadly by the courts. EU policies also explicitly protect individuals in the processing and publication of personal data.4 In 2012, the European Commission proposed even further sweeping online privacy protection regulations including a reinforced "right to be forgotten."5

In this context, the CJEU decision in Google v AEPD held that search engine operators such as Google are subject to EU data protection laws. The reasoning is that search engines collect, process and control data when automatically and systematically searching for information, then retrieve, record and organize the data, and finally process and disclose it to internet users. The CJEU held that EU citizens have the right to directly request that search engine operators remove hyperlinks of personal information that are "inadequate, irrelevant or no longer relevant, or excessive in relation to [the purposes for which they were collected or processed] and in the light of the time that has elapsed." However, this "right to be forgotten" is more akin to a right to digital obscurity since the actual content (such as in Mr. Gonzalez's case, the original publication by La Vanguardia) is not removed from the Internet, but merely the search provider's link to it is removed.

The CJEU recognized that the right to be forgotten must be balanced against a public interest right to know and access information. Therefore, determining whether links to web pages should be removed from a search engine's index will depend on (i) the nature of the information in question, (ii) the personal or sensitive relevance to a person's private life, and (iii) the public's interest in having access to this information. In an effort to strike the right balance, Google has created an advisory council to gather input and publish its findings.6

From a critical perspective, this decision establishes a heightened level of internet regulation in the EU that holds search engine operators responsible even though they are not the original publisher of information. Moreover, it creates uncertainty in practical implementation and risks imposing digital borders (for example, results about Mr. Gonzalez may be available in Canada or through other search engines that are not available through Google's European search results).

Furthermore, it is complicated by the fact—the troubling fact, according to access to information proponents and free speech advocates7 —that the onerous responsibilities of assessing and deciding upon the merits of requests to access information, and the added costs to develop and implement an appropriate policy, are left to search engine operators and not the original publisher. Facing uncertain liability, search engine operators may err in favour of removing information upon request even if the public has a legitimate right to know it. Whereas the original publisher seems to be the more appropriate target for correcting, updating or removing irrelevant, incorrect or excessive information.

Privacy and data protection concerns have taken centre stage since Edward Snowden, a former U.S. intelligence contractor, leaked details of U.S. surveillance programs.8 However, Google v AEPD contentiously prioritizes a person's right to privacy over the need to access data.

Online Privacy Rights in Canada

In Canada, federal privacy laws such as the Personal Information Protection and Electronic Documents Act ("PIPEDA") or provincial laws such as BC's Personal Information Protection Act govern individual privacy rights and regulate how private sector companies collect, use and disclose personal information.9

Canadian privacy laws already protect and allow individuals to govern the use of their personal information and image. Private sector companies cannot disclose personal information without consent unless it can be proven there is a legitimate public interest right to know. Individuals also have the right to expect any publication of their personal information to be accurate, complete and up-to-date. Consequently, PIPEDA gives individuals the right to request their online information removed by the original publisher if their consent is not given or if the information is not up-to-date.

The most comparable case to Google v AEPD in Canada is a 2011 decision, Crookes v Newton ("Crookes"), where the Supreme Court of Canada ("SCC") made a landmark ruling in the context of determining whether hyperlinks could constitute publication for defamation purposes.10 The SCC established that, when generating hyperlinks, search engine operators are not considered publishers given that hyperlinks are integral to the modern use of the internet and facilitating access to information.

Crookes is tremendously useful for distinguishing Canadian privacy laws from the EU "right to be forgotten:" since PIPEDA provides individuals the right to have their personal information removed by the original publisher, a "right to be forgotten" by search engine operators may not be necessary in Canada. Individuals in Canada also have the right to limit the use of their image online and to protect their reputation through copyright and defamation laws.11 Whether it is an improper use of a person's image for profitable purposes or the publication of defamatory material through anonymous blog posts, Canadian courts have upheld an individual's right to protect their privacy. Furthermore, the SCC's most recent privacy decision, R v Spencer,12 in June 2014 is another strong indicator of Canada's direction to protect internet users' privacy rights online. This decision held that there exists a reasonable expectation of privacy over one's own internet activities, such as browsing patterns or downloads.

While Google v AEPD does not set a legal precedent in Canada, there is no question that Canadian privacy commissioners will take notice as the case raises a key point of whether search engine operators can be held responsible for protecting and removing the personal data of persons.

Canadians' privacy rights with respect to information posted or gathered online are largely protected by existing laws, and the SCC has taken positions that seem to balance the right of privacy against both competing rights (such as the right to access information or the right to free expression) as well as the practicality of constantly evolving technology. However, the development of our privacy laws regarding information published online will continue to adapt in response to new challenges and subtleties of the use of information available on the internet, such as search engines' auto-complete and advertisements targeted to internet users as determined by their personal search preferences.

As such, while we do not have, and may not even necessarily need, a "right to be forgotten", Canadian companies that collect, use or disclose personal information may wish to review their practices to ensure that Canadians are given appropriate control over those activities as already required by Canadian privacy laws.

Footnotes

1 Google Inc v Agencia Espanola de Proteccion de Datos (AEPD), (2014) CURIA c-131/12.

2 The Spanish Data Protection Agency is referred to in Spain as the "Agencia Espanola de Proteccion de Datos."

3 European Convention on Human Rights, Article 8

4 The Data Protection Directive 95/46/EC and General Data Protection Regulation

5 http://ec.europa.eu/justice/newsroom/data-protection/news/120125_en.htm

6 https://www.google.com/advisorycouncil/

7 http://www.thestar.com/business/tech_news/2014/05/16/right_to_be_forgotten_ruling_lacks_balance_geist.html

8 Mr. Snowden has since been charged with two counts of violating the Espionage Act and theft of government property by the U.S. Department of Justice: http://www.theguardian.com/world/edward-snowden/

9 Personal Information Protection Act, SBC 2003 c. 63: http://www.bclaws.ca/Recon/document/ID/freeside/00_03063_01; Personal Information Protection and Electronic Documents Act, SC 2000, c 5: http://www.priv.gc.ca/leg_c/r_o_p_e.asp

10 Crookes v Newton, 2011 SCC 47: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7963/index.do

11 In British Columbia, the Privacy Act, RSBC 1996 c. 373: http://www.bclaws.ca/Recon/document/ID/freeside/00_96373_01, also creates a privacy tort where someone's name or portrait is used without license for the purpose of advertising or promoting the sale of a property or service.

12 R. v. Spencer, 2014 SCC 43: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Karl Gustafson, QC
Ryan J. Black
Sharon E. Groom
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions