Canada's privacy commissioner proposes right to change inaccurate search engine results

Canada's privacy commissioner thinks you should have the right to ask that inaccurate, incomplete or outdated information appearing in search engines be either amended or removed — and that under Canadian law, internet companies should have to comply.

In cases where information about individuals has been posted by others to a website or social media platform, individuals should also have a right to challenge the accuracy and appropriateness of that information.

The proposed policy was announced Friday by the Office of the Privacy Commissioner of Canada.

Although the proposal is similar in some ways to the European Union's right to be forgotten — which has been criticized for its potential to affect free expression — it isn't modelled on the EU's framework, but rather is an interpretation of existing Canadian privacy law.

"There is little more precious than our reputation," Privacy Commissioner Daniel Therrien said in a statement announcing the policy proposal Friday.

"But protecting reputation is increasingly difficult in the digital age, where so much about us is systematically indexed, accessed and shared with just a few keystrokes. Online information about us can easily be distorted or taken out of context and it is often extremely difficult to remove."

If it isn't possible or practical for information to be modified or corrected, Therrien's office suggests two remedies:

• De-indexing, which would require search engines such as Google, Bing, or Yahoo to remove links to pages that have been deemed inaccurate or inappropriate under the definition of Canada's Personal Information Protection and Electronic Documents Act.
• Source takedown, as the name implies, would require a website or social media platform to remove inaccurate or inappropriate content from the internet completely.

Individuals can lodge a formal complaint with the commissioner if the issue can't be resolved with a search engine or site operator directly.

A right to be forgotten

In the EU, a process to request the removal of results from search engines such as Google has existed since 2014. But de-indexing is not without its critics. Some have expressed concerned that the tactic could be used to crack down on legitimate speech and free expression, and that it won't stop people from finding the information at its source.

There are also concerns about leaving such decisions to private companies, according to submissions to the commissioner.

"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 OPC said.

But the most pressing fear is what will happen if a country is successful in applying such a policy globally — as Canada's Supreme Court did in a ruling last year. The technology company Equustek successfully sued another company for relabelling its products and passing them off as their own, and the court ruled that Google had to de-list hundreds of websites related to the counterfeit products from its results globally

France has gone a step further and is seeking to have the right to be forgotten apply to countries outside of the EU.

Canada's privacy commissioner admits that doing so globally would likely impact the sovereignty of other nations. Instead, the OPC recommends, "geo-fencing techniques should be applied so that de-indexing of search results is limited to searches originating from within Canada."

In Europe, Google says it has delisted 881,000 URLs since the right to be forgotten was put into effect — which account for 43 per cent of the total requests it has received.

Google declined to comment. Microsoft has yet to reply to a request for comment.

Policy not yet final

In an email, University of Ottawa law professor Michael Geist said he isn't surprised by the commissioner's position. "We've seen many privacy commissioners move in this direction," he wrote.

For its part, giving Canadians more control over their reputation online has been one of the commission's priorities since 2015. It launched a consultation and call for essays the following year, and drafted today's policy in response. The proposed measures have not yet been put into practice, and the commissioner plans to hold further consultations before finalizing a position.

The commission believes that because search engines portray themselves as sources of the most relevant, reliable, authoritative sources of information online — effectively building ever-changing profiles of personal information around search queries in the process — they also have an obligation under Canada's personal information act to be accountable for the accuracy and appropriateness of their results.

"We are of the view that there are a certain number of limited circumstances in which a reasonable person would not consider it appropriate that specific content containing personal information is identified by a search engine as 'relevant' in relation to a search of an individual's name and given prominent placement in search results," the draft policy reads.

Information that might be deemed inappropriate and subject to removal includes material that is unlawful or illegally published, or may cause significant harm to an individual and is not in the public interest to leave in place.

The commissioner is also recommending that Parliament study the issue further "to determine whether we have struck the right balance," according to the draft policy report.