Jonathan Zittrain[1] calls the right to be forgotten a “ bad solution to a very real problem.” This article sets out to answer two questions. Firstly, what is the problem that the right to be forgotten is trying to solve? Secondly, why is the right to be forgotten a bad solution to this problem?
Internet has changed the way information is communicated and these changes affect individuals’ right to privacy. Current privacy and personal information protection legislations, namely, Section 8 of the Charter, Privacy Act and Personal Information Protection and Electronic Documents Act along with its provincial variations, regulate gathering, use and disposal of personal information of individuals. Common law, also, provides complainants with cause of action in defamation, libel, misappropriation of personality and intrusion upon seclusion. However, in today’s digital age, these existing frameworks do not sufficiently address the issues and concerns of those who use Internet on a daily basis. The widespread use of the Internet and the consequential importance of online reputation, make it a necessity to either look for alternative ways to protect online privacy or improve the existing frameworks.
The right to be forgotten enables individuals to ask for their personal information to be removed from the Internet. This alternative solution has been at work in Europe, and if adopted in Canada, it would widen the scope of the current privacy frameworks. However, the differences between the structure of Canadian jurisprudence and European jurisprudence might impede the adoption of the right to be forgotten in Canada.
Legislations that embody the right to be forgotten, give individuals a right to demand erasure of their information. Arguably, then, these legislations have the potential to be suppressive towards freedom of expression and consequently, s.2(b) rights.
In the case that these legislations are found to be offensive to freedom of expression rights, section 1 of the Charter might be invokes to see whether or not they can be regarded as reasonable limits on rights and freedoms. However, since there are other ways to achieve the same goal as these legislations such as anonymizing published information, employing reputation systems, using expiration dates for personally identifiable data, contextualization and cognitive adjustments, the s.1 analysis might fail on the minimal impairment test.[2]
Further, public policy arguments in favour of adopting the right to be forgotten mostly focus on the rights and freedoms of one party and ignore the competing rights and freedoms of the other party to the dispute or the interest of society at large. Protecting privacy interests of individuals, societal reintegration, ability to redefine oneself and safeguarding one’s autonomy are amongst the reasons proposed for adopting the right to be forgotten.
Arguments against adopting the right to be forgotten focus on this exact shortcoming. These arguments hold that the right to be forgotten should not be adopted because in balancing individuals’ right to privacy against societal good, the latter should be upheld.
Discussion around right to be forgotten involve one prevalent question: Why should an individual have the right to decide what is relevant or irrelevant for other individuals to know or remember? And the answer would be: it depends of the circumstances. For example, in a case of revenge porn, there are strong public interest reasons that justify giving an individual, the complainant, the right to demand removal of such content.[3] However, it is more difficult to see why complainants should be given the same right in cases where, for instance, they have been given a bad online review because of the services they have provided.
Adoption of the right to be forgotten in Canada will be a radical departure from precedent. If the purpose of the right to be forgotten is to safeguard individual’s right to privacy on the Internet, then the right to be forgotten is unnecessary. This is because, as it was discussed, there are other ways to reach the same objective, which are less offensive to competing rights and freedoms.
Nazli Jelveh is a JD Candidate at Osgoode Hall Law School.
[1] George Bemis professor of international law at Harvard Law school, professor of Computer Science at Harvard School of Engineering and Applied Sciences and Co-Founder, Director, and Faculty Chair, Berkman Center for Internet & Society.
[2] Michael L. Rustad & Sanna Kulevska, “Reconceptualization of The Right to Be Forgotten to Enable Transatlantic Data Flow” (2015) 28:2 Harvard J of L & Technology 349 at 382-385.
[3] Gabrille Giroday, “Ontario court expands scope of privacy tort to include ‘revenge porn’” (1 February 2016), Legal Feeds (blog), online: < http://www.canadianlawyermag.com/legalfeeds/3104/ontario-court-expands-scope-of-privacy-tort-to-include-revenge- porn.html>.