Canada: Parliamentary Committee Recommends Substantial Revisions To PIPEDA – Part 3 – Online Reputation / "Right To Be Forgotten"

As reported in our recent post, on February 28, 2018, the House of Commons Standing Committee on Access to Information, Privacy and Ethics tabled in the House of Commons a report entitled Towards Privacy by Design: Review of the Personal Information Protection and Electronic Documents Act. The recommendations in the Committee's Report are also heavily influenced by the direction set in the European Union General Data Protection Regulation, ("GDPR") which comes into force this year.

We have prepared a multi-part series of posts focusing in more depth on each section of the Report.

In this post, we summarize and comment on the Committee's findings set out in Part 3 of the Report, which treats the issues of the "right to be forgotten", the destruction of personal information and "privacy by design".

The other posts in this series are:

Part I – Overview and Context of the Report

Part 2 – Consent

Part 3 – Online Reputation/ "Right to be Forgotten"

Part 4 – Enforcement Powers of the Privacy Commissioner

Part 5 – Adequacy of PIPEDA under the GDPR

Right to be Forgotten

The issue of online reputation has long been a topic of interest for lawyers whose practice addresses issues of defamation. However, in 2014, the topic was given novel treatment when the Court of Justice of the European Union ("CJEU") rendered its decision on the issue of de-indexing in Google Spain v. AEPD and Mario Costeja Gonzales ("Google Spain").

In that matter (which involved an individual who wished to have Google remove links between his name and website content related to an old bankruptcy proceeding that he had been involved in), the CJEU found that search engines, such as Google, must consider requests made by individuals to remove certain websites from the results produced when their name is searched. The case became associated with a nascent so-called "right to be forgotten", since enshrined in the GDPR.

With this as the backdrop, the Committee examined whether PIPEDA should be amended to include an analogous, express "right to be forgotten" and, if so, what form(s) such a right should take.

The Committee's first finding in this regard was that when online reputational damage occurs in the context of personal relationships rather than commercial transactions, PIPEDA does not apply (since the latter only applies to the collection, use and disclosure of personal information in a commercial context). Moreover, the Committee noted that the Criminal Code treats a number of related offences, such as regards the publication of intimate images without consent. Accordingly, the Committee clarified that the scope of their analysis was limited to the protection of privacy and online reputation in the context of commercial transactions.

Second, the Committee noted that the "right to be forgotten" could be addressed through two distinct types of remedies: (a) the right to erasure; and (b) the right to de-indexing. The former involves the right of an individual to have his/her personal information deleted from a website; the latter involves the mere de-referencing or de-indexing of such website from search results that include the individual's name (while leaving the source documents themselves in place).

Right to Erasure

As regards the right to erasure, the Committee noted that PIPEDA does not expressly contain such a right, although the principles of "consent", "limited retention" and "accuracy" may be applied in some instances to give effect to a limited right of erasure in certain circumstances.

For example, according to Principle 4.3.8 of Schedule 1 to PIPEDA, an individual has the right to withdraw consent to the collection, use and disclosure of his/her personal information. If this is then combined with the limited retention principle, pursuant to which an organization may only retain personal information for so long as it is necessary for the fulfilment of the purposes for which it was collected, then (in some circumstances) an individual may successfully argue that, upon withdrawal of their consent, the organisation that holds their information should destroy it.

Moreover, pursuant to the "accuracy" principle, organisations should provide opportunities for individuals to update and correct any inaccuracies in the information that is held about them, particularly where such information may be used to make a decision about the individual. Finally, the Committee noted the recent Federal Court decision (A.T. v. in which the court ordered the removal of personal information from a website because it determined that the information had not been collected for appropriate purposes, in violation of Section 5(3) of PIPEDA.

In this context, several of the Committee witnesses argued that PIPEDA should be amended to create a more comprehensive right of erasure (to address situations of cyberbullying or revenge porn, for example) that would be similar in scope to the right of erasure found in the GDPR. Others, however, raised substantive concerns about the potential negative impact on freedom of expression, as protected by the Charter. A representative of the Association of Canadian Archivists argued that a right of erasure must not unduly interfere with preserving the integrity of public documents.

Ultimately, the Committee expressed the view that individuals should have the right to have their personal information removed when they end a business relationship with a service provider or when the information was collected, used or disclosed contrary to PIPEDA. The Committee recommended that legislators look to the GDPR as a model as a means of clarifying the scope of such a right. Finally, the Committee concluded that, at a minimum, young people should have the right to have information that is posted about them (by themselves or by others) taken down.

Right to De-indexing

As regards the right to data de-indexing, the Committee not only noted the above-cited Google Spain decision, but also the more recent Supreme Court of Canada decision of Google Inc. v. Equustek Solutions Inc. (discussed in our previous post, here).

Although the latter case involved a de-indexing order in the context of litigation related to the unlawful publication of confidential information and trade secrets, some Committee witnesses argued that a similar logic could be applied to justify de-indexing of personal information. In this regard, as discussed in our previous post, the Office of the Privacy Commissioner of Canada ("OPC") argued that this form of right to be forgotten already exists in PIPEDA and that it considered it appropriate to have search engines provide the first level of review of a de-indexing request. Since this approach raised concerns regarding the proper role of the private sector in administering administrative remedies, Committee witnesses argued for the importance of a transparent decision-making process and the OPC proposed a series of criteria that should be applied in relation to any de-indexing request.

Ultimately, the Committee recommended that the legislator consider including a de-indexing framework in PIPEDA and that the right be expressly recognized in cases related to personal information posted online by individuals when they were minors.

Destruction of Personal Information

Reinforcing the Committee's discussion of the right to erasure (discussed above), certain witnesses argued that the erasure of data should be compulsory – not simply recommended – once it is no longer necessary for the purpose for which it was collected. Some argued that PIPEDA should be amended to include a clear definition of what is meant by the "destruction" of data, especially in contexts where complete destruction may be impractical (such as where traces of data may be stored in back-up storage). The Committee expressed support for such recommendations.

Privacy by Design

Finally, the Committee explored the idea of expressly introducing "privacy by design" principles into an amended PIPEDA. "Privacy by design" is meant to ensure that privacy considerations are taken into account at all stages of product development, including in relation to the design, marketing and retirement of the product.

The approach is based on the following seven foundational principles:

  1. Proactive not reaction; preventative not remedial
  2. Privacy as a default setting
  3. Privacy embedded into design
  4. Full functionality – Positive sum, not zero sum
  5. End to end security
  6. Visibility and transparency
  7. Respect for user privacy.

Key Take-Aways

Many Canadian businesses have followed the implementation of GDPR (coming into force in May 2018) only vaguely, on the assumption that the new EU data protection regulation will not apply. However, it is clearly time for all Canadian businesses to start paying much closer attention to privacy developments occurring "across the pond". This is because the GDPR not only has extra-territorial application, it is also providing to be a major source of "inspiration" as Canadian legislators turn their minds to updating Canadian data protection law. Indeed, as Canada assesses what changes to PIPEDA (and analogous provincial legislation) may ultimately be required to maintain a favourable EU "adequacy status", the GDPR principles may well find their way directly into Canadian legislation.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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

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

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
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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