STRUGGLING TO ESCAPE THE NET
Our past sins remain a click away
A quick Google search of her name, one woman complained, brought up court cases that laid bare her medical information.
Another said her daughter was being identified in online court documents as “a sex worker.”
A mother worried her son might read an account of the bitter custody battle fought for him.
A former inmate said his official pardon had been rendered all but meaningless.
The four were among 49 Canadians who lodged complaints with the federal privacy commissioner between October 2013 and April 2016. All of them were angry that old court cases had suddenly started popping up in Google searches of their names.
What’s more, they said, the Romanian website that had posted the material — thus making it discoverable by Google’s search engine — was demanding money to take it down: It would cost them about $300 to be forgotten.
Welcome to the internet, circa 2017.
The web’s hive mind has a long memory — and a mean streak — which can be a serious problem for anyone trying to move past an ugly divorce, a criminal record, a bankruptcy or a foolish mistake. For years, officials turned a blind eye to the problem, declaring the web a wild and unruly frontier.
But now, two decades after the advent of Google (the domain google.com was registered on Sept. 15, 1997), courts and regulators are increasingly asking the question: Should the internet’s cache of damaging personal data be made to disappear at some point? Or should it remain in place forever, burned onto the online presence of the once guilty like some kind of digital scarlet letter?
Those who argue for a bestbefore date call it “the right to be forgotten” and say it should be a fundamental tenet of the digital age.
But free speech advocates contend that enshrining the right in law will diminish the revolutionary power of the web by creating “black holes” where information can disappear.
“There are two competing interests at the heart of almost everything that goes on online,” says Montreal lawyer Allen Mendelsohn, an internet law specialist. “In the simplest terms: It’s your right to your reputation versus the other person’s right to freedom of expression.”
Europe and Argentina are among the jurisdictions that have already recognized an individual’s right to be forgotten. The issue has played out for years in Europe, where regulators are now wrestling with the thorny question of how to enforce removal orders on the transnational, shape-shifting web.
In May 2014, the European Union’s highest court ruled that Google must remove links to damaging personal information deemed inadequate, irrelevant or excessive.
The ruling — based on the complaint of a Spanish man who wanted Google to remove links to a 1998 news story about his bankruptcy — said search engines were data “controllers,” not just neutral conduits, and therefore had a responsibility to cleanse unfair and damaging information.
In its wake, Google received a deluge of requests for cache removals from EU residents: more than 735,000 people filled out the company’s digital application form. It has since delisted 1.1 million search results inside the EU, according to the company’s public transparency report.
France’s data protection agency, however, said that wasn’t good enough, and it has ordered Google to censor those same links worldwide so that someone conducting a search in Canada, for instance, couldn’t find information unavailable in the EU. (Google Search uses different domains for different countries: Canada is www.google.ca, Germany is www.google.de, Spain is www.google.es, Australia is www.google.com.au, the U.S. is www.google.com.)
Google has challenged the order to France’s Conseil d’Etat, which in July referred the issue to the EU’s top court.
The company says the case has profound implications for the free flow of digital information.
“If French law applies globally, how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach?” Google general counsel Kent Walker wrote in a recent blog post.
Information that is legal in one country, he said, is verboten in another: “Thailand outlaws insults to its king; Brazil outlaws negative campaigning in political elections; Turkey outlaws speeches that denigrates Ataturk or the Turkish nation.”
He warned that the case, if upheld, could trigger “a global race to the bottom.”
Google is already in an uncomfortable situation. By recognizing the right to be forgotten, European courts have handed the multinational the judge-like responsibility of weighing individual privacy rights against the public’s right to know.
Google officials have reviewed more than two million EU web addresses (URLs), and have decided to remove 56.9 per cent of them.
The company provides examples of the decisions it faces, but it does not set out hard and fast rules for removals, nor does it explain how its officials balance public versus private interests.
The Global Commission on Internet Governance, an independent think-tank led by former Swedish prime minister Carl Bildt, decried that state of affairs in a 2016 report: “Private companies — as opposed to courts and legislatures — are only accountable to their shareholders; they should not be the arbitrator on how to weigh fundamental rights and public interests.”
Courts around the world are now wrestling with issues raised by privacy on the internet, and Canada is no exception.
In January, the Federal Court of Canada issued a judgment that excoriated Sebastian Radulescu, the owner of the website Globe24h. com, as someone who “has essentially made a business of exploiting the privacy of individuals for profit.”
In 2012, Globe24h.com downloaded thousands of decisions from the Canadian Legal Information Institute (CanLII), a nonprofit organization that offers access to decisions from Canadian courts and tribunals.
CanLII shields its database from search engines in keeping with guidelines published by the Canadian Judicial Council. (In 2005, the judicial council said that while internet publishing enhances the open-court principle, it also raises legitimate privacy and security concerns. Most Canadian courts follow the council’s guidelines, but not all: The Manitoba Court of Appeal, for instance, allows its judgments to be indexed by Google. Once indexed, the material is infinitely more accessible to the average web user.)
Globe24h.com circumvented the Canadian convention by conducting a bulk download of CanLII data and posting it to a company website. That made it discoverable by Google’s search engine. As a result, people searching an individual’s name — even if they were not looking for court records — would quickly find the cached legal documents.
In response to a flood of complaints, the Office of the Privacy Commissioner of Canada investigated.
Radulescu defended his website. He told the privacy commissioner that he was engaged in a “journalistic enterprise” to broaden the availability of Canadian legal decisions. His company didn’t create the documents, he argued, but simply amplified their distribution: “If courts do not want everyone to see (their decisions), why do they publish them online in the first place?” he asked.
In June 2015, the privacy commissioner issued a report that found that the website generated most of its revenue by collecting fees to remove the unwanted material. It recommended that Radulescu take down the Canadian content from his website.
But the Romanian flatly refused. So the case ended up in the Federal Court of Canada, which can add legal force to the privacy commissioner’s findings.
In his ruling earlier this year, Justice Richard Mosley concluded there was nothing journalistic about Radulescu’s business: “The evidence indicates that the respondent’s primary purpose is to incentivize individuals to pay to have their personal information removed from the website. There is no evidence that the respondent’s intention is to inform the public on matters of public interest.”
The judge ordered Radulescu to remove the documents, and awarded the anonymous complainant $5,000 in damages. Globe24h.com is now inoperative.
Some observers believe the decision represents the first major step toward establishing a courtsanctioned right to be forgotten in Canada. At the very least, says Ottawa-based lawyer Colin Lachance, it highlights the need for a national debate.
When you consider how easy it is to destroy someone’s reputation, or cause them a lot of financial and social harm, it’s kind of ridiculous. It’s not a just situation right now.
“It’s really time for a new national conversation about this,” said Lachance, CEO of the legal publisher, Compass, and former president of CanLII. “Personally, I’m of the view that case law should be open and free.”
Mendelsohn used to believe in a no-holds-barred internet, but tempered that view after years of trying to help people whose lives had been damaged by web posts.
“I used to think, ‘If it’s truthful information, why should it be removed or delisted?’” he says. “But having seen so many circumstances where individuals have real problems because of things on the internet, I’ve softened that stance a bit: I don’t think there should be some unlimited right to be forgotten where anything can be removed, but I do think something needs to be put in place . ... There are a lot of competing interests that make it a very complicated situation. But there are significant problems with some of the stuff that’s easily discoverable through Google.”
Most people would agree with the notion that a doctor who committed serious malpractice, or someone who abused a child, should not have their internet footprints easily erased. But how long should lesser crimes be allowed to damage reputations online? What about allegations of cheating, adultery, bad food, poor service?
A handful of U.S. websites — including The Dirty, Cheater Report and The Ripoff Report — routinely publish allegations that can damage the reputations of ordinary people and small businesses. The websites post mostly unverified accusations and complaints.
“They hide behind certain American laws, and make it very hard to remove content,” says Mendelsohn. “It’s unfortunate, but there’s very little you can do except get active on the internet so that the item in question gets pushed down in the Google rankings.”
Sometimes, business owners and individuals turn to online reputation managers, such as Reputation. ca, to help them bury an offensive post or a bad review. Restaurants, hotels and retailers can be devastated by a single, cranky customer who takes to social media.
Reputation.ca has a number of strategies to repair an online reputation. First, it appeals directly to the person or group that posted the material. If it’s not possible to have the post removed, the firm employs what it calls a “suppression” strategy: It develops 20 or 30 pieces of factual content about a client and publishes them to the web. Optimized for search engine algorithms, the material can displace negative posts on Google’s search index.
“When you consider how easy it is to destroy someone’s reputation, or cause them a lot of financial and social harm, it’s kind of ridiculous,” says Matt Earle, founder and president of Reputation.ca. “It’s not a just situation right now.”
The Supreme Court of Canada recently entered the debate.
The country’s highest court issued a judgment in late June that upheld a worldwide removal order against Google. The ruling has broad implications for content policing on the web: specifically, whether search engine companies can be ordered to suppress search results in other countries. (It’s the same issue that’s now before EU’s top court.)
The Canadian case dealt with a commercial interest rather than an individual’s privacy, but internet lawyers believe it will inform the debate on the right to be forgotten. Explains Mendelsohn: “For a right to be forgotten to meaningfully exist, you must have the ability to say that Google must remove something.”
The case involved Equustek Solutions Inc., a Burnaby, B.C. based firm that makes networking devices to improve industrial automation.
In 2012, Equustek won a court order that prevented a Vancouverbased competitor, Datalink Technologies Gateways, from selling counterfeit versions of its products. Datalink, however, closed its Vancouver office and continued to operate as a virtual company through an ever-expanding series of websites.
Equustek appealed to Google for help in dealing with its scofflaw competitor. The California-based company voluntarily removed 345 web addresses from its list of search results on Google.ca to limit public access to Datalink. But Datalink simply moved its content to new web pages, and continued to sell products online — mostly to customers outside of Canada. Equustek lawyers described its pursuit of Datalink as an unhappy game of “Whac-A-Mole.”
As a result, the firm went back to court, seeking a broader injunction that would order Google to block all search results that linked to Datalink’s websites worldwide.
Google lawyers said the order went much too far. They argued that a permanent, worldwide injunction would set a dangerous precedent, and undermine freedom of expression.
The lower court, however, sided with Equustek, ruling that an injunction with international force was the only practical way of protecting the company’s economic interests. The B.C. Court of Appeal upheld that ruling, and Google appealed to the Supreme Court of Canada, which heard the case in December.
In its written submissions, Google said the case, if upheld, opened the door to abuse by nations eager to control information. Other countries, it warned, could turn to similar international blocking orders to scrub the web of ideas they consider offensive. “Should Russia grant orders prohibiting Canadians from finding and reading websites that contain anti-Kremlin content?” Google lawyers asked.
The case attracted a host of interveners, including the Wikimedia Foundation, Human Rights Watch and the Canadian Civil Liberties Association. Wikimedia’s lawyers cautioned: “While this case relates to commercial speech, the court should be mindful of the fact that expression that is creative, educational, and informative will also come before courts around the world.”
In a 7-2 ruling, the Supreme Court upheld the worldwide deindexing order against Google. It’s the first time that a nation’s highest court has upheld such a sweeping removal order against the search engine giant.
Writing for the majority, Justice Rosalie Abella said that although Google was not directly responsible for what happened to Equustek, it cannot be considered a simple bystander since, as a key internet gatekeeper, it “facilitated” that harm.
The judge noted that Canadian courts routinely grant international injunctions to deal with intellectual property and copyright infringements.
“The problem in this case is occurring online and globally,” the court said. “The internet has no borders — its natural habitat is global.” aduffy@postmedia.com