Buying the ‘right’ to censor

Comparisons of American and Canadian approaches to free speech often go something like this: The United States is mule-headed and absolutist about it, protecting even Nazis from censorship, while Canada also sees speech as a fundamental freedom, but a malleable one that yields when it conflicts with interests such as equality and human dignity.

In truth, the two are closer than one might think. Canada does have a stronger appetite for “content-based” regulation — punishing speech based on its message. But both countries strive to create clear, consistent, and easy-to-apply legal tests in speech cases for fear that an unbounded “balancing” test will lead to government overreach in censoring speech.

The Canadian Office of the Privacy Commissioner, however, is about to dispense with that disciplined approach in a new policy that will create a legal right for Canadians to force search engines and online publishers — including news publishers — to delete embarrassing content. Even if the information is true. They might have to remove it from search results. They might be required to delete it from the web entirely. Although the commissioner’s office disavows the term, its proposal of a “right to be forgotten” eschews the tradition of clear, consistent, and easy-to-apply-rules. And it does so in a way that could benefit the powerful while doing little to protect the online reputation of the average Canadian.

Among the many issues with the proposed policy, one in particular shines a floodlight on this concern: its failure to effectively distinguish public figures from private citizens.

The commissioner’s draft position paper only provides concrete guidance on public figures once, and in the context of removing information from search results. The paper says that an individual’s status as a public figure is but one factor to consider in determining whether it is in the public interest for a search result to remain online (in the same discussion, the commissioner suggests that whether information is in the public interest is only one “relevant consideration,” not the primary one).

History reveals the danger here. Although the “right to be forgotten” is a creature of the internet, it looks a lot like defamation law. Both create a legally enforceable right to punish and remove speech to protect one’s reputation. Indeed, the commissioner’s draft prominently relies on definitions and guidance from libel cases.

During the American civil rights movement, segregationists weaponized defamation law in attempts to silence civil rights activists. When The New York Times carried an advertisement critical of Southern segregationists that included factual errors, the city commissioner in charge of the police in Montgomery, Ala., sued the Times and the black clergymen who sponsored the ad, even though the commissioner wasn’t named in it. Numerous other public officials sued, too. The Times was looking at enough legal exposure to threaten its business, and the individual defendants could have been forced into bankruptcy.

The case was appealed to the U.S. Supreme Court, where the justices ultimately sided with free speech. In doing so, they attempted to formulate one of these clear and consistent legal tests to prevent public officials from misusing defamation law to chill the speech of their critics. The court held that in any defamation case where the statement at issue involves a public figure, the plaintiff has to prove that the publisher knew or had strong reason to know that the statement was false and published it anyway. Publication has to be malicious.

Known as the “actual malice” test, this serves two purposes. One is perhaps obvious: it provides “breathing room” for vigorous debate about issues of public importance. Sometimes people make mistakes, especially when they’re talking about fraught issues, such as segregation and civil rights.

The second purpose, however, is subtle and directly relevant to the privacy commissioner’s policy: it discourages those with power and money to burn from suing in an effort to deter future criticism even when they don’t have a case.

This problem is even worse under the commissioner’s proposal. Just making a request for de-indexing or takedown will be relatively inexpensive, so there’s nothing stopping the prominent and powerful from swamping search engines and online publishers with meritless deindexing and takedown requests. But, in many or most cases, it will take resources to get a court to ultimately issue a binding order if they choose not to comply — so only those with means can really get their requests enforced.

Ultimately, the proposed policy lacks appropriate guidance for search engines and online publishers, and government enforcers, on how to handle requests involving information about public figures or people whose records are of public importance. It fails to include bright-line rules like an actual malice test. Indeed, the right rule here would hold that speech about public figures is presumptively beyond the reach of a de-indexing or takedown request.

It’s not too late to preserve the Canadian right to free speech, and the enforcement process should demand that clear and consistent rules be implemented as the policy is enforced.