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The Right to Be Forgotten

  • Photo: “196/365 – What have I done?” by TheRogue is licensed under CC BY-NC-SA 2.0

What is the “right to be forgotten”? Does it exist in Canada?

This right arises from a 2014 decision of the European Union Court of Justice, commonly referred to as the “Google Spain” decision

Google Spain Decision

The case arose from announcements published in a 1998 Spanish newspaper relating to forced sales of properties arising from social security debts.  Mr. Mario Costeja Gonzalez owned one of those properties and was named in the announcement.

In 2009, he asked the newspaper to remove his name, because online searches of his name led to the announcement.  He argued that the sale was completed long ago and was no longer relevant.  The newspaper refused to remove it.

In 2010, he contacted Google Spain, requesting that the links to the announcements be removed from search results. The request was forwarded to Google Inc., in California.

He then complained to the Spanish Data Protection Agency. It dismissed the complaint against the newspaper, but upheld it against both Google Spain and Google Inc. This meant Google was to remove the problematic links.

Google then appealed.

The court held that search engines are responsible for their processing of personal data which appear on web pages. They must consider and, in certain circumstances, remove links to personal information that “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed."  Removing links is referred to as de-indexing.   

Interestingly, the court rejected Google’s argument that it was beyond the territorial scope of the EU’s laws. It held that Google Spain was a subsidiary of Google Inc. on Spanish territory and both were therefore subject to EU law. 

The court held that processing data which is "inadequate, irrelevant or excessive" may not have complied with the EU Data Protection Directive (DPD) provisions regarding data quality. In cases such as this, the information and links in the list of the results must be erased.  It is not necessary for the individual to show that the information was inaccurate or prejudicial. 

The DPD has since been replaced by the General Data Protection Regulation (GDPR).

Implications

Europeans may now challenge a search engine that fails to de-index personal information.  This could result in authorities ordering the search engine to remove the links from search results.

Google now has an online form allowing Europeans to request that search results about them be removed from European search domains.

From May, 2014 until December, 2017, Google received over 2.4 million requests from Europeans to be de-indexed, or “forgotten.”

In 2017, a German Court issued an injunction against Google after finding it was not doing enough to comply with the European Union's right to be forgotten.  

A Canadian Right to Be Forgotten

Do Canadians have a “right to be forgotten”? 

The Google Spain decision was based on certain provisions of the Charter of Fundamental Rights of the European Union, including those relating to respect for private and family life and protection of personal data.

It was also based on the EU Data Protection Directive (DPD). The DPD allowed an individual to object to data processing based “compelling legitimate grounds relating to his particular situation.”

While these provisions differ in some ways from Canadian privacy laws, the underlying spirit of our laws is similar.  This is all the more so when we consider our privacy laws in light of the Canadian Charter of Rights and Freedoms.

Some Canadian court decisions suggest that it may not be long before our courts expressly confirm that Canadians too have a right to be forgotten on line.

This is a slightly modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about November 29, 2019. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances.  If you would like to reach us, we may be reached through our website at inspirelaw.ca