OPC Publishes Draft Position on Online Reputation

Last Friday, the Office of the Privacy Commissioner of Canada (OPC) published its Draft Position on Online Reputation. In this Draft Position, the OPC articulated the view that the Personal Information Protection and Electronic Documents Act (“PIPEDA”) already include a de-indexing right – allowing individuals to request that search engines de-index results with respect to their name if such results don’t comply with the data quality principle (i.e. if the results are “inaccurate, incomplete or outdated”). While this right is not identical to the EU right to be forgotten promoting the right to requests for the removal of search results that are “inadequate, irrelevant or no longer relevant”, it may raise some of the same concerns and legal challenges.

The Draft Position details how de-indexing requests should be managed by search engines in Canada, identifies potential legislative changes and proposes other solutions such as improving organizations’ practices (including coordinating the development on an industry-wide Code of Practice related to information takedown policies, privacy defaults and procedures), improving education and promoting further research. This Draft Position arises from the 2016 consultation and call for essays following the OPC’s publication of a discussion paper entitled “Online Reputation, What are they saying about me?” in which it asked if a right to be forgotten could find application in the Canadian context and if so, how.

In the Draft Position, the OPC expresses its view that the activity of indexing webpages containing personal information and displaying links to these pages in search results constitutes a collection, use and disclosure of personal information as regulated by the Personal Information Protection and Electronic Documents Act (“PIPEDA”). According to the OPC, search engines conduct “commercial activities” even when their services are provided for free, since most of them display advertisements alongside search results to generate revenue. Teresa Scassa has published an interesting piece (see OPC Report on Online Reputation Misses the Mark on the Application of PIPEDA to Search Engines) explaining her views that this interpretation is inconsistent with current case law.

I have already voiced my concerns with the implementation of a right to be forgotten in Canada. I had co-authored with Jules Polonetsky, CEO of Washington based Future of Privacy Forum, a joint-submission paper (as part of the 2016 consultation and call for essays) which explored whether importing a right to be forgotten that would allow individuals to stop search engines from providing links to information deemed irrelevant, no longer relevant, inadequate or excessive would be advisable in Canada. We warned against entrusting private entities with the tasks of arbitrating fundamental rights and values and determining what is in the public interest, with little or no government or judicial oversight. We have also published an article entitled Droit À L’Oubli: Canadian Perspective on the Global ‘Right to Be Forgotten’ Debate in the Colorado Technology Law Journal and I had published an op-ed piece Forget about bringing the ‘right to be forgotten’ to Canada in the Financial Post.

It should be noted that the OPC has also released a Notice of Consultation and a Call for Comments on its Draft Position, with comments due April 19, 2018.

This content has been updated on May 2, 2024 at 14 h 10 min.