“The right to be forgotten”: Are There Two Solitudes in Quebec and the Rest of Canada?

While the right to be forgotten is virtually taken for granted in Europe today, it is still a subject of considerable doubt in the rest of the world. More precisely, there is no consensus on the existence of the right itself within a single country: although Canada seems to be adopting the idea, Quebec secedes from that view against the backdrop of its well-known motto, “je me souviens” [In English, “I remember”].

The “right to be forgotten” is a deceptively simple concept. Essentially, it can refer to two scenarios: the ability to have information deleted from a website (“right to erasure”) and the ability to have information de-indexed on a search engine (“right to de‑indexing”). Although both of these components relate to online reputation, they do not have the same origin or effects. It is entirely possible for personal information to be removed from a website and still continue to generate a result on a search engine, particularly via archiving sites like Wayback Machine. Similarly, having a page or website de-indexed on a search engine is not the same as deleting the page or website at the source.

European legislation and case law regarding personal information protection, including in France, guarantee individuals both aspects of the right to be forgotten, as may be seen in the May 13, 2014, decision of the Court of Justice of the European Union in Google Spain or in article 17 of the General Data Protection Regulation, which will apply directly starting in May 2018.

In Canada, we have reviewed the concept and it is in this context that the Office of the Privacy Commissioner of Canada (OPC) issued a notice of consultation in 2016 in which one of the questions was: “Can the right to be forgotten find application in the Canadian context and, if so, how?” Several months later, the roads taken by Canada and Quebec on this difficult question seem to have diverged. Although federal and provincial personal information protection laws rest on relatively similar foundations, the oversight authorities do not agree on the existence of the “right to be forgotten” itself.

The “right to be forgotten” exists in Canada

In a Draft Position Paper published on January 26, 2018, the Office of the Privacy Commissioner of Canada suggested that federal personal information protection legislation currently provides a form of the “right to be forgotten”. In other words, there is no need to create a new right since one reading of the existing laws already offers the ability to request de‑indexing of search results or erasure of information at the source. While the report declines to “import a European framework into Canada”, it must be acknowledged that these rights are very similar to the European conception of the “right to be forgotten”. We must note that the draft position will be the subject of a final document at the end of a consultation period and that the OPC is also urging Parliament to “consider ... external factors, such as the impacts any differences between the Canadian and European legislative frameworks with respect to individuals’ control of online information may have on adequacy.”

The “right to be forgotten” does not exist in Quebec

Here, the Commission d’accès à l’information du Québec held on April 14, 2016, in C.L. v. BCF Avocats d’affaires, that [TRANSLATION] “a person’s right to have incorrect, incomplete or equivocal information in a file concerning him or her rectified is not equivalent to the ‘right to be forgotten’, the purpose of which is to remove information from public spaces,” adding that “there is no certainty that this right, which is recognized in Europe, applies in Quebec.” In that case, an employee’s profile had been erased from her former employee’s website after the employment relationship was terminated, but it was still listed in search engine results connecting her with her old job. The former employee considered the situation to be harmful to her job search, because [TRANSLATION] “the employers to which she applies inevitably do Internet searches and find that there is a connection with the company that she believes will certainly give bad references.” After analyzing the applicable Quebec law, the Commission concluded that there was nothing from which the existence of any “right to de-indexing” (or “right to be forgotten”) in Quebec could be inferred and dismissed the complaint.

“To be” or “ne pas être”?

Leaving aside bilingualism, that is the question that seems to be emerging in Quebec and the rest of Canada on the existence of the “right to be forgotten”. We have a number of reservations regarding that approach. First, it seems to us that a right should be assessed initially in terms of its applicability rather than its existence, at the risk of putting the cart before the horse. Second, in light of the ethical and social repercussions of this “right to be forgotten”, perhaps it should be up to the legislature to state a clear position on the issue (by amending the existing law or enacting new legislation), rather than rely on a debatable interpretation of the Canadian and Quebec statutes now in force. Third, and in the same vein, the right to be forgotten is a societal choice of no small importance; it is a choice that will be made for the future and one in which all Canadians and Quebeckers should be able to see themselves reflected.

This content has been updated on 7 April 2018 at 20 h 10 min.