Droit À L’Oubli: Canadian Perspective on the Global ‘Right to Be Forgotten’ Debate

Colorado Technology Law Journal (Spring 2017, Forthcoming)

45 Pages Posted: 1 Apr 2017 Last revised: 3 Apr 2017

Eloise Gratton

Borden Ladner Gervais LLP; University of Montreal

Jules Polonetsky

Future of Privacy Forum

Date Written: March 31, 2017

Abstract

European Courts have recognized a “right to be forgotten” (RTBF) that would allow individuals to stop data search engines or other third parties from providing links to information about them deemed irrelevant, no longer relevant, inadequate, or excessive. There is a lack of consensus between the EU and the U.S. on the legitimacy of this right, which illustrates the cultural transatlantic clash on the issue of the importance of privacy versus other rights, such as freedom of information and freedom of speech. This is problematic given that privacy regulators in Europe have also pressed for a broad view of this right, seeking to extend it globally, requesting that information not only be delisted from European extensions, but from all extensions. Some are concerned that such an extraterritorial effect not only allows someone from a different jurisdiction or country to erase information that they perceive as “irrelevant” or “illegitimate” based on their own set of values; it also arguably promotes one culture’s value of individual privacy rights over other cultures’ value of free expression. While the Canadian Charter of Rights provides constitutional protection to fundamental freedoms such as freedom of expression, Canada has also adopted data protection laws, which are similar to the European Directive 95/46/EC.

This paper explores whether importing a RTBF would be legal in Canada. The authors argue that such a right may be unconstitutional in Canada: it would most likely infringe upon freedom of expression in a way that cannot be demonstrably justified under the Canadian Constitution. They also argue that the legal framework in Quebec addresses some of the privacy and reputational concerns that a RTBF is meant to address through a “public interest” test, although they acknowledge that there are some limits to this framework. The notions of res judicata and periods of limitations must be revisited to ensure that this privacy framework can adequately address the fact that with the Internet, data can outlive the context in which they were published and considered legitimate. The fact that the data that was once considered out-dated may become relevant again over time should also be considered. The authors warn 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.

Suggested Citation

Gratton, Eloise and Polonetsky, Jules, Droit À L’Oubli: Canadian Perspective on the Global ‘Right to Be Forgotten’ Debate (March 31, 2017). Colorado Technology Law Journal (Spring 2017, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2944012

Eloise Gratton (Contact Author)

Borden Ladner Gervais LLP ( email )

1000 rue de la Gauchetière
Suite 900
Montreal, Quebec H3B7417
Canada
(514) 879-1212 (Phone)

University of Montreal ( email )

C.P. 6128 succursale Centre-ville
Montreal, Quebec H3C 3J7
Canada

Jules Polonetsky

Future of Privacy Forum ( email )

United States

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