The recent ruling by a European court that compels Google and other search engines to honour requests by ordinary citizens to remove links to unflattering personal material has galvanized the debate about how to balance privacy and freedom of expression online.

While a number of Canadian lawyers say a European-style "right to be forgotten" is unlikely to be extended to Canadians, they aren't ruling it out.

In mid-May the European Court of Justice (ECJ) ruled that Google must remove links to stories when people request they be taken down.

David Fraser, an internet and privacy lawyer with the Halifax firm McInnis Cooper, doesn't believe this could be implemented in Canadian law, because the Charter of Rights and Freedoms "has a guarantee of freedom of expression — we don't have a guarantee of your right to be forgotten."

But Kirsten Thompson, counsel at Toronto law firm McCarthy Tetrault who has an expertise in internet law, says "there is a legitimate case" for a similar decision in Canada.

She says the Charter tries to strike a "balancing act" between the right to expression and privacy, "so it's hard to tell where a court will come down on that."

'Much to its suprise, [Google] found itself on the wrong end of that EU decision. It could potentially happen here as well.'- Kirsten Thompson, lawyer with Toronto firm McCarthy Tetrault

The European decision was the outcome of a case brought forward by Mario Costeja Gonzalez, a Spanish man who was alarmed to find that Google searches linked to a 1998 newspaper story that said his house was being repossessed in order to pay off his debts. He felt these historical details, while true, were no longer relevant.

The ECJ took no issue with the Spanish newspaper's right to publish the piece, establishing that it had acted in the public interest. But it ruled that Google, as the world's biggest search engine, was infringing on his privacy by making the information widely available.

The ECJ ruling states that Google and other search engines must remove data from past results if requested to do so by any member of the European public. However, the links will only become invisible to European Google users; people who live outside the 32-nation area will still be able to see the offending links.

Since the decision was handed down, Google has reportedly received more than 40,000 takedown requests. Google has not released information on how many links it has removed, but according to the Wall Street Journal, the internet company is considering hiring or redeploying employees to deal with the volume.

'Well-meaning but incoherent'

Many technology commentators have criticized the decision and say it's a form of censorship, including Jimmy Wales, the founder of Wikipedia, who called it "ridiculous."

In an email letter to U.S. website Tech Crunch last week, Wales wrote, "We have a typical situation where incompetent politicians have written well-meaning but incoherent legislation without due consideration for human rights and technical matters."

What many opponents take issue with is the European court's interpretation of search engines as "data processors" that collect data, store it on servers and make it available to web users in lists of search results.

"They are putting quite the onus on

[an organization that] is not responsible for publishing the information in the first place," says Allen Mendelsohn, a Montreal lawyer who likens the European ruling to penalizing a librarian for the contents of a controversial book.
Privacy watchdog 20130213

One lawyer said that Canada could adopt a European-style right to be forgotten law if courts decided to reinterpret the role of a search engine. (Jonathan Hayward/Canadian Press)

"The librarian will help you find that book, but the librarian didn't publish that book."

One of the ironies of the ruling, critics point out, is that while it forces Google to remove links to unflattering material, it can't compel the actual publisher of the content to take it down from the internet. In other words, the material can still be found online.

This fundamental flaw prompted late-night U.S. talk show host John Oliver to quip that rather than eliding mention of his financial dealings online, the European court ruling has made Mario Costeja "world-famous for being that Spanish guy with debts from 1998."

What 'publication' means

Mendelsohn says one of the reasons he believes Canada is unlikely to adopt a right to be forgotten law is that Canadian lawmakers have recognized the difference between publishing an article and merely linking to it.

In 2011, the Supreme Court handed down a decision that absolved websites of legal responsibility for hyperlinking to a piece of defamatory content.

The case involved Wayne Crookes, a Vancouver businessman and campaign manager for the B.C. Green Party, who in 2006 sought damages from the operator of a website for linking to articles about Crookes that he felt were defamatory.

In explaining the court's decision, Justice Rosalie Abella wrote that a hyperlink, on its own, "should never be seen as 'publication' of the content to which it refers."

What the ruling showed, Mendelsohn says, is that the court acknowledged that "the link was not responsible for the defamation that was at the other end of that link. The court understood that that's the way the internet works."

Fraser believes that Europeans generally put a greater emphasis on privacy rights, which can be seen in their attitudes to the online world.

As a result, "I often see decisions and discussions and attitudes that suggest a dramatically different philosophical approach to what the internet is," Fraser says.

When asked whether Google would consider granting a right to be forgotten outside of Europe, a spokesperson for Google Canada said the company is "not planning any broader policy change in response to the European court's decision."

Evolving law

Ryder Gilliland, a partner at Toronto law firm Blake, Cassels and who has an expertise in media law, says "there's definitely a trend in Canadian courts towards recognition of privacy interests" online, but he doesn't believe that Canada would adopt a right to be forgotten law.

McCarthy's Thompson, however, says this area of law is "evolving so quickly and the understanding of personal information and privacy as a value commodity and a right changes from year to year."

As a result, she believes a similar case could make its way into the Canadian courts.

The first step would be for someone to lodge a complaint with the office of the federal privacy commissioner. Because the privacy commissioner has no power to coerce a search engine such as Google to take anything down, the next step would be to begin legal proceedings.

Thompson says it would all hinge on re-interpreting the role of a search engine. Canada's Personal Information Protection and Electronic Documents Act protects Canadians by stating that a business must have a person's consent in order to collect, use and disclose information about them online.

"Google has maintained for a very long time that it doesn't do any of that, it's just a conduit," says Thompson. But as in Europe, she says, a Canadian court could find that Google plays a greater role in disseminating information.

"Much to its surprise, [Google] found itself on the wrong end of that EU decision. It could potentially happen here as well."