It will be the first time a Canadian high court will consider the “right to be forgotten” on Google. The Supreme Court of Canada granted Google leave to appeal¹ the ruling in Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 (see full case here), that required Google, as a third party, to block search results operated by the defendant not only on its Canadian search engine, google.ca, but everywhere else, including on google.com. The leave to appeal granted to Google in 2016 will clarify whether judges have the legal power to force Google to scrub sites outside their borders.

Equustek bears striking resemblance to the so-called “right-to-be-forgotten” or, more accurately, the “right to delist” ruling in the European Union, the result of a 2014 directive by the Court of Justice of the European Union (CJEU)². During the same year, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, revealed a new “Privacy Right” that would give the choice to remove personal information disclosed on the internet no longer wanted out in cyberspace.

"This issue regarding the so-called 'right to be forgotten' is compounded in social media, where personal information put forth by users may quickly be shared and distributed in ways that may make deletion difficult and may be subject to collection and use by third parties unknown to the user. If consumers choose to share information with other third-party sites, the means to compel the destruction of any data they share should be available at the avenue through which they share with the third party. It is difficult when it trees down like that to enforce production and destruction of user data.”³

While some people view the decision as a positive step toward protecting privacy, others worry about its impact on freedom of expression and information, asserting that it could lead to censorship, and on our right to privacy, generally colored in a concept called the “reasonable expectation of privacy”. Others pointed out that removing links do not really provide privacy but rather the illusion of it, since the content is still available to public.

The debate around the expectation of privacy when it comes to social media evidence is relevant.

The Personal Information Protection and Electronic Documents Act (PIPEDA) is a Canadian law relating to data privacy and addresses the dual concerns of privacy protection and reasonable collection, and use of personal data. Although the law is still evolving, evidence pulled from social media websites is admissible as long as it is relevant and material to the case. PIPEDA features an “appropriate purposes” provision that limits the collection, use, and disclosure of personal information only for purposes that a reasonable person would consider are appropriate under the circumstances.”⁴

Given PIPEDA’s principles of individual access and openness, a mechanism could be put in place “that would talk to these organizations and get a sense of where their data’s going, how it’s being used, and where it’s being collected from. That’s a fact-finding type of expedition that (…) would be really useful, but it’s very difficult for individuals to undertake on their own.”⁵

In the aftermath of the European Court of Justice “right to be forgotten” decision, will we require a common law road map to a “right to be forgotten” if our Courts have the power over Internet intermediaries to intentionally target and limit the source content of entire databases? Will Equustek’s leave to appeal have any impact on the way in which social media evidence is admitted and the definition expectation of privacy?

Going forward, it will be up to Canada’s highest court to decide if Google’s cyber reach matches the court’s reach and its impact on the expectation of privacy when it comes to social media evidence.

REFERENCES:

1. www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=36602
2. Google Inc v Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez, (2014) CURIA C-131/12.
3. ETHI, Evidence, 1st Session, 41st Parliament, October 16, 2012, 1655 (Jason Zushman, Merchant Law Group).
4. S.C. 2000, c. 5(3).
5. ETHI, Evidence, 1st Session, 41st Parliament, June 19, 2012, 1210 (Tamir Israel, CIPPIC).