In Canada, the federal and provincial governments share jurisdiction with respect to the
protection of privacy in the private sector. Therefore, the extent of one’s right to be forgotten in Canada could depend on the province where the forgetting is supposed to happen, or at least originate from.
Right to be forgotten from the federal point of view
At the federal level, the existence in Canada of a “right to be forgotten” is a complex question that is currently being debated by legal commentators as well as before the courts. No federal legislation explicitly establishes a right to be forgotten or a comprehensive right to have one’s personal information removed from internet search results or otherwise de-indexed, nor do the courts have up to now interpreted applicable law as to include such a right to be forgotten in Canada.
Search engines and federal privacy legislation
However, in 2018, the Privacy Commissioner of Canada published a draft policy position suggesting that existing privacy law1 may nevertheless allow Canadians to require search engine operators and other commercial organizations to de-index results associated with their names in certain circumstances2. Canadian federal courts have since held, in connection with an inquiry by the same Commissioner, that as a search engine operator, Google was subject to federal privacy legislation when associating search results with an individual’s name, such activity being considered collection, use and disclosure of personal information in the context of a commercial activity3. The implications the ruling may provide the basis for the establishment of a right to be forgotten across Canada, although the extent of such right remains largely speculative. Google has appealed the decision before the Federal court of Appeals, and it seems probable that the question could be brought before the Supreme Court of Canada regardless of the outcome. Absent a legislative change at the federal level, we seem to be a long way from having a solid legal framework to guide the right of individuals to request the de-indexation of web pages based on privacy concerns across Canada (if such right does in fact exists).
Right to be forgotten from the provincial point of view
-
-
- Most notably the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA).
- Draft OPC Position on Online Reputation, https://www.priv.gc.ca/en/about-the-opc/what we-do/consultations/completed-consultations/consultation-on-online-reputation/pos_or_201801/#heading-0-0-3
- Reference pursuant to Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723; It is to be noted that whether Google is subject to PIPEDA when it is aggregating data to build individual advertising profiles was not in question.
-
At the provincial level, the Province of Quebec is the first provincial jurisdiction to introduce a clear right to deindexation – akin to the right to be forgotten – through legislative change. Quebec and right to deindexation The provisions of the bill recently adopted to modernize the province’s privacy regime dealing with deindexation will come into force in September 2023 and will establish a right for individuals to require any person carrying an enterprise to cease disseminating information or to de-index any hyperlink attached to an individual’s name that provides access to the information by a technological means in two sets of circumstances.
De-indexation will be mandated if either:
- the dissemination of the information contravenes the law or a court order; or
- the dissemination of the information causes the person concerned serious injury in relation to his right to the respect of his reputation or privacy;
- the injury is clearly greater than the interest of the public in knowing the information or the interest of any person in expressing himself freely; and
- the cessation of dissemination, re-indexation or de-indexation requested does not exceed what is necessary for preventing the perpetuation of the injury.”
At this time, we can only speculate on how this right will be implemented in practice, but we can already anticipate serious challenges, including having private businesses determine such delicate questions as balancing personal injury with public interest.
Supreme Court of Canada on infringing content
Given that search engines and other internet-based content aggregators operate across borders, the issue of the right to be forgotten is very much linked to the issue of extraterritorial jurisdiction. In Google Inc. v. Equustek Solutions Inc.5 , the Supreme Court of Canada upheld a worldwide injunction ordering Google to cease indexing or referencing in search results certain websites containing infringing content published in violation of Canadian court orders, thereby affirming, from the Canadian point of view, the Canadian courts’ extraterritorial jurisdiction over intermediaries such as search engine operators.
Future outlook on right to be forgotten
It will be interesting to see how the Canadian case law evolves on the question of extraterritorial orders and in particular the enforcement of such orders in practice. We may find out in September 2023 if residents of other provinces will seek a remedy before the courts of Quebec for lack of any available relief in their home province or at the federal level.
- Section 121, An Act to modernize legislative provisions as regards the protection of personal information, Bill 64, 1st Sess, 42nd Leg
- [2017] 1 RCS 824
The right to be forgotten seems to be slowly entering into the Canadian legal landscape, with the Province of Quebec acting as an early adopter. Lessons from the Quebec experiment with a right to de-indexation may help shape how the right to be forgotten is implemented (or not) in the rest of Canada, bearing in mind that given the difference in private law tradition between Quebec and other Canadian provinces, principles established in Quebec may have a limited impact across the country.