There’s a saying that goes something like “the internet is forever.” It’s often used as a cautionary tale—but there’s an argument to be made that an individual’s reputation belongs to them, even if the internet disagrees.
A new Maru/Matchbox poll shows that close to three-quarters of Canadians (74 per cent) believe that the right to access news overrides the right to remove accurate and lawful stories that might have a negative impact on a person’s reputation.
That needs a few precursors first. This only deals with lawful stories, so it does not involve untrue rumours, libel or slander. Those are illegal to publish and the poster could potentially end up in jail. Also, things like the posting of intimate images—sometimes known as “revenge porn”—is also illegal under Canadian law. However, other forms of what some may describe as bullying are harder to cover, such as the posting of insensitive comments or altered images of someone to make fun of them.
What this new poll refers to are the aspects of a person’s life that they may not want the world to know that could potentially harm them in the future, or are harming them in the present. This might include the public disclosure of bankruptcy, money problems or a failed business, or an eviction or landlord dispute. These kinds of stories, if published online, could lead to difficulty when that person wants to receive a loan or buy a home, even if those original problems have long been solved. These are a few examples, and there are countless more. The question then revolves around if that person has the right to control how those stories are viewed on the internet.
“As the Office of the Privacy Commissioner contemplates a ‘right to be forgotten,’ it will need to strike a balance between those rights protecting freedom of expression and the right to manage reputation online,” said Natalie Turvey, the executive director of the Canadian Journalism Foundation.
The difference in whether Canadians believe lawful stories should be policed on the internet becomes more polarizing when an individual is concerned about an accurate news story affecting their own personal reputation. If a story is affecting their reputation, 58 per cent of Canadians believe a search engine should not be required to remove it, while 42 per cent do believe it should be removed.
This idea of the right to be forgotten was discussed at the “Striking the Balance: Privacy and Freedom of Expression in a Digital Age” symposium that featured Daniel Therrien, Canada’s privacy commissioner. Therrien said that a balance must be found between the rights of publishers and Canadian citizens.
The right to be forgotten involves delisting search results on an engine like Google, as this is how the vast majority of stories are found and disseminated. But stories should never be deleted entirely.
“The ease of access [to news stories] is one of the characteristics that create harm to individuals,” said Therrien. “Not doing anything would not protect reputation or privacy sufficiently. So we’re left with the middle ground, which is not a perfect ground, but at least it seems to balance the two interests. If privacy were to be protected fully, the [story would be deleted]. That would be going to far, so we’re advocating delisting.”
That middle ground Therrien brought up represents how the rights for a journalist or publisher to create and maintain a story can be upheld by leaving a published story untouched, while the rights for the subject of that story can also be upheld by simply delisting the piece from major search engines.
Therrien admits there’s a lot of wiggle room here that needs to be addressed by the federal government, as current privacy laws give his office the authority to act on certain requests but ambiguity around others.
“I’m fully aware that the mechanism isn’t perfect and that you’re playing on the balance between two fundamental rights,” he said. “I can use the tools I have—privacy law as it exists now—to achieve the best balance possible, but it would be preferable if Parliament studied this issue and looked at the proper balance to craft a better remedy.”
Those fundamental rights refer to Canada’s Charter of Rights and Freedoms. Section 2(b) guarantees the freedom of expression—in this case, maybe from a journalist—but those freedoms are not absolute. Section 1 allows rights to be restricted in a manner that is consistent with a free and democratic society, in accordance with what is known as the Oakes test, when the government has to establish that the benefits of a law outweigh its negative impact.
“You have to look at whose rights are engaged,” said David Fraser, an internet and technology lawyer. “Say for the CBC, if they tell Google they can’t index something or direct users somewhere, you’re engaging the charter rights of Google, because corporations have charter rights too, along with CBC’s journalists, editors and publishers. But citizens also have a charter right to receive information. All three of these need to be scrutinized carefully.”
Therrien supports the right to be forgotten, and a similar right has already been adopted in other jurisdictions throughout Europe with good success, though it’s still too early to gauge long-term results. Right now in Canada, there is no explicit right to be forgotten, or a right to have information de-indexed, but companies are legally obligated to make sure that the information they collect and disclose is accurate and up-to-date. That legal obligation is what Therrien was referring to when it comes to his office’s ability to act on some privacy laws, but not others, such as a journalistic article.
Referencing back to the Maru/Matchbox poll, in terms of who Canadians think should be responsible for removing a lawful and accurate story if it harms someone’s reputation, 60 per cent say it should be up to the courts.
The battle for Canadian’s lawful right to have information removed from the internet—either entirely, or simply through de-indexing as Therrien wants—will continue to rage until the federal government updates privacy laws.