Only a matter of time until ‘right-to-be-forgotten’ debate comes to Canada

By Douglas Quan
Edmonton Journal

You’ve got skeletons in your digital closet. Do you have a right to keep them hidden from view?

Days after Europe’s highest court ruled that Google and other search engine operators can be forced to remove links to personal information that are “no longer relevant” or “excessive” — drawing privacy-advocate praise and free speech-protector scorn — the implications of the so-called “right-to-be-forgotten” ruling for Internet users in North America remain uncertain.

Carmi Levy, an independent technology analyst in London, Ont., said he’s not aware of any comparable legal cases pending in Canada, but he predicts it’s only a matter of time before a test case is launched.

“Because of what’s happening in Europe now, I think the ball is going to move much more quickly in Canada,” he said.

How successful such a legal challenge would be, however, is another question. The pendulum in Europe tends to swing in favour of digital privacy rights, but on this side of the Atlantic it swings in favour of freedom of expression, especially in the United States.

“I think it’s sort of embedded in the American DNA,” said Derek Bambauer, an Internet law expert and professor at the University of Arizona. The prevailing attitude in the U.S. is “the way that you fight bad information is with more information.”

Canada falls somewhere in between, the experts said.

The ruling from the European Court of Justice last week stemmed from a complaint by Mario Costeja González, a Spanish man who objected to Google searches linking his name to 1998 news articles about the repossession of his home.

The U.S.-based Electronic Privacy Information Center hailed the decision, saying it affirmed that privacy is a “fundamental right.” But the international Computer and Communications Industry Association warned that the decision now “opens the door to large-scale private censorship in Europe.”

It’s a valid concern, Levy said. Politicians may want to “rewrite history” by asking to get rid of references to questionable past policy decisions. Convicted child molesters could ask that articles about their trials be pulled. “Are society’s interests best served by allowing individuals greater power to control their online persona?” he asked.

There is no question people’s digital trails contain ticking “time bombs” that can explode their reputations, but the online market is “more than capable” of regulating itself without further intervention from lawmakers or the courts, Levy said.

Google now faces the possibility of being deluged with “take down” requests and it will be challenged to sort between the “good” and “bad” ones, Bambauer said.

The company could respond by erring on the side of caution and simply agree to take links down, he said. It might even take an all-or-nothing approach, where, instead of removing a single link, it’ll delete every link that pertains to you, Bambauer continued. “Either you’re going to be on Google wholesale or we’re going to delist you altogether. I doubt very much that they’re going to do that … but you could see where it would be much more efficient.”

Aaron Brindle, a Google Canada spokesman, acknowledged in an email that the recent court ruling has “significant implications” for how the company handles removal requests.

“This is logistically complicated — not least because of the many languages involved and the need for careful review. As soon as we have thought through exactly how this will work, which may take several weeks, we will let our users know,” he said.

Brindle declined to say how many Canadians contact Google on an annual basis with requests to take down links or how the company responds. Levy doesn’t think the number is all that big, either because Canadians are unaware they can approach the company directly with such requests or are unwilling to go to the trouble.

For those who care — and who are willing to pay for it — one option is to pay a company to help rebuild your online reputation.

Matt Earle, president of Toronto-based, says many of his clients have not been able to land jobs or attract dates because of damaging online content. His company tries to help clients by first approaching the publisher of the content to see if they will agree to take it down.

If that fails, they will move to suppress the information by building new web content that shows the client in a more positive light and promoting that new content so it appears up high in search results.

One client, a realtor, was charged with drunk driving but later exonerated, he said. “We built up their personal realtor website, then we signed them up for profiles on all of the realtor organizations. We joined them up to all the social networks. We made them a blogger about the real estate industry.  We basically built a profile of a super realtor.”

Earle, who supports the European court ruling, said people’s pasts shouldn’t haunt them for the rest of their lives.

“These things shouldn’t define you forever,” he said.

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By the numbers:

Sept. 15, 1997 — date when domain name was registered

68 per cent — Google’s share of all Internet search queries conducted in the month of April

12.6 billion — number of searches conducted on Google in the month of April

$15.4 billion — Google revenue during its last financial quarter

18 — number of court-ordered requests in Canada to remove content from January to June 2013 (Google complied in 83 per cent of cases)

438 — number of court-ordered requests in the United States to remove content from January to June 2013 (Google complied in 55 per cent of cases)

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