Civil Litigation, Defamation

Privacy commissioner misses mark on de-indexing

By AdvocateDaily.com Staff

Canada’s privacy commissioner oversimplifies the situation to suggest that “de-indexing” online links to potentially defamatory or erroneous information is possible in Canada under existing laws, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

In a recently released draft policy position, Privacy Commissioner of Canada Daniel Therrien said provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA), could be combined to force companies such as Google to remove links from search results if they include inaccurate information about an individual.

Therrien also called on the federal government to study the issue further and strengthen the tools for Canadians to manage their reputations online.

But Winkler, principal and founder of Winkler Dispute Resolution, says the draft policy oversimplifies the issue.

“The privacy commissioner’s view that existing legislation allows de-indexing misses the mark, in my opinion,” he says. “If the government, as a matter of policy, is unhappy with the way search companies operate, they will have to be the subject of further legislation.”

According to Therrien’s draft policy, PIPEDA currently requires companies to use accurate information, while providing for the ability of individuals to challenge any falsehoods. He says the two provisions can be combined and interpreted as a right for individuals to ask for information about themselves that is inaccurate, incomplete or out of date to be de-indexed.

“Such challenges should be evaluated on a case-by-case basis, and decisions to remove links should take into account the right to freedom of expression and the public’s interest in the information remaining accessible,” the policy reads. “If an individual is able to successfully challenge the search result based on the above, it should be de-indexed. However, lowering the ranking of a result or flagging a link or content as inaccurate or incomplete could be sufficient alternatives in some cases.”

But Winkler questions whether the law even applies to the activities of search engines such as Google in these instances since PIPEDA is only engaged when an entity collects, uses or discloses an individual's personal information.

“Google is just linking to the content of others,” he says. “The more relevant issue is not Google’s responsibility, but people’s rights to force website owners to correct any false information."

Winkler says the report also fails to account for the intricacies of defamation law when focusing on the activities of search engines. In a landmark 2011 judgment, the Supreme Court of Canada ruled that hyperlinking alone to defamatory material does not constitute publication of the content for the purposes of libel law.

“The mere provision of a link does not create liability. The privacy commissioner fails in his draft report to distinguish between the role of publisher and conduit,” Winkler explains. “In some respects, search engines are acting as a mere conduit by indexing and providing links to sites, and I don’t see PIPEDA applying in those circumstances.”

Still, Winkler says search engines may cross the publication threshold and find themselves exposed to liability if the snippets they pull from content to appear in searches contain defamatory material, especially if they have received a complaint from the subject.

“But the law is still untested in this area as to whether and when a search engine becomes a co-publisher,” Winkler says.

In addition, the privacy commissioner’s report fails to adequately distinguish between accurate and false information, he says, noting that defamation law only comes into play when a publication contains something that is untrue.

“If the linked content and Google’s snippet both contain accurate information, I don’t see how PIPEDA could be used to restrict that in any way,” Winkler says.

The law also provides defences for expressions of opinion made in good faith, he adds.

“Much of the content that people are concerned about is not necessarily to do with the accuracy of information, but rather they’re unhappy with opinions that are expressed by others. PIPEDA doesn’t apply at all to restrict expressions of opinions,” Winkler says.

He says PIPEDA contains a number of exceptions concerning personal information used or disclosed for journalistic purposes

“To the extent that one can consider the linked content being the result of a journalistic endeavour, it doesn’t come under the jurisdiction of the Act, so concerns about links to historic news articles are not going to be addressed either by the current legislation or by the privacy commissioner’s interpretation,” he says.

Another exception to the Act applies to information that is “publicly available.”

“You might argue that all information on the internet is publicly available, so for search engines to link to it can cause no legislative foul,” Winkler says.

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