Accounting for Law

'Right to be forgotten' raises regulatory questions

Further guidelines and clarity may need to be developed as the campaign for a “right to be forgotten” gathers steam at home and abroad, Toronto litigator Sharon Bauer tells

Search engines, led by Google, have processed more than a million requests for the deletion of material since the European Union (EU) Court of Justice first recognized the right in 2014, in a case involving a Spanish man who wanted information about his financial history removed from the web.

Daniel Therrien, the Privacy Commissioner of Canada, has also expressed his support for similar protections in Canada, but Bauer, a partner with Wolfe Lawyers, is concerned about businesses making important decisions that could affect individuals and citizens at large.

“I wonder if entities like Google are the most appropriate parties to decide whether content should be removed,” Bauer says. “When we’re dealing with possible constitutional issues such as freedom of expression and press freedom, and how it conflicts with our belief in the right to privacy, we need to ensure that the decision-making entity is qualified, unbiased, and has no ulterior motives.”

"I believe we will see more search engines playing it safe and de-indexing pages in order to avoid a lawsuit like the recent one in which a businessman took Google to the UK High Court for the right to be forgotten and won," she says. "This is especially true in light of the EU’s new General Data Protection Regulation, which governs the processing of data and explicitly incorporates the right to be forgotten."

According to a BBC report, Google maintains its right to decline delisting requests if it judges the links in question to be in the public interest. However, the story says a man recently won a U.K. High Court injunction forcing the company to remove a page about his past crime from search results.

And in Canada, a draft report by Therrien’s office calls for de-indexing to help preserve reputations online.

Bauer says she has sympathy for the view that people should have a mechanism for removing personal information about themselves from the internet and protecting their privacy.

“Young people often make mistakes, which should not follow them for rest of their lives,” she says. “On the one hand, you have this interest in correcting or removing inaccurate or outdated information, but on the other hand, we don’t want people rewriting history.

“There needs to be a middle ground,” adds Bauer, who says the solution may come in the form of legislation that provides clear definitions and regulations for search engines or other organizations to follow when making de-listing decisions.

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