On April 14th, 2016, the Commission
d'accès à l'information (the
"CAI") issued a decision discussing the relevance of the
"right to be forgotten" with regards to the "right
to rectification" found in the Act Respecting the
Protection of Personal Information in the Private Sector,
CQLR, c. P-39.1.
In C.L. c. BCF Avocats d'affaires, 2016 QCCAI 114,
the plaintiff was a former employee of a law firm. She claimed that
even after she left the firm, her name was still linked to her
previous employer's website when typed into various search
engines. She consequently made a request for rectification before
the CAI and asked that any mention of her name and any information
relating to her be removed from the firm's website, as she was
concerned that prospective employers would call the firm and ask
for references. The firm denied that there was any trace of its
former employee's name or information on either its website or
server, nor that there were any "tags" explaining the
results found on search engines.
The CAI dismissed the plaintiff's request for rectification.
It held that the firm had fulfilled its obligations by removing all
information about the plaintiff from its website. While it
acknowledged that certain search engines were still linking the
plaintiff's name with the firm, the CAI noted that such results
were due to a digital archive called Wayback Machine, which enables
users to see archived versions of web pages across time, including
a version of the firm's website dating from the time when the
plaintiff was still employed by the firm. For the CAI, the firm did
not hold "inaccurate, incomplete or equivocal"
information about the plaintiff, given that the information that
appeared on the website in 2013 — and that re-appeared today
through the Wayback Machine — was accurate at the moment it
had appeared online.
In this regard, the CAI interestingly noted that a person's
right to rectification with respect to inaccurate, incomplete or
equivocal information is distinct from the "right to be
forgotten." This right, which is recognized in the European
Union, allows individuals to stop search engines from providing
links to information about them that is deemed "inadequate,
irrelevant or no longer relevant, or excessive in relation to the
purposes of the processing at issue."
Impact on the "Right to be Forgotten"
As a result of this decision, it is now clear that the right to
be forgotten is irrelevant to the examination of the right to
rectification, as the two rights are different, both conceptually
and practically. The CAI also mentioned that it is doubtful whether
the "right to be forgotten" would find application in
Québec. This issue is highly topical at the moment, given
that the Office of the Privacy Commissioner of Canada recently
chose to make reputation and privacy one of its priorities for the
next five years and has launched an inquiry in which it asks
whether a "right to be forgotten" would find application
in Canada. The present case is one of the rare Canadian decisions
on the matter and might, at least to a certain extent, provide some
insight on the position of the CAI with regards to the application
of the right to be forgotten in Québec.
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