No. Historical information must be protected

In 2014, the European Court of Human Rights’ ruling in Google Spain found that data protection laws required search engines such as Google to delete “inadequate, irrelevant, or no longer relevant” search results on request.

The so-called right of individuals to have information about themselves de-indexed from search results has become known as “the right to be forgotten.”

Since the right to be forgotten became law in Europe, Google receives requests to de-index an average of 45,000 European web addresses a month. In each case, Google must make an assessment as to whether the individual’s interest in having the information de-indexed outweighs the public’s right to access lawful information.

Statistics available through Google’s Transparency Report show that in the first three years that de-indexing was available in Europe, 20 per cent of all requests related to news outlets and government websites, predominantly those with information about legal proceedings.

A small number of requesters, mostly law firms and reputation management firms, accounted for 15 per cent of all requests.

In other words, the right to be forgotten is frequently exercised by individuals with the means to hire lawyers and public relations firms to hide lawful public records of their alleged or actual crimes and misdeeds, and news media are frequent targets of de-indexing requests.

These statistics should give strong pause to those advocating for a right to be forgotten in Canada.

Criminal and disciplinary proceedings are public because it has long been understood that the social benefits of publicity outweigh the potential harm and embarrassment to the individuals involved.

Even where someone has been acquitted, which Google lists as a consideration in favour of allowing a de-indexing request, the proceedings should remain part of the public record.

As Louis Brandeis famously wrote more than a century ago, “sunlight is the best disinfectant.” No public good can come from effectively erasing a public prosecution from history. The notion that individuals have a privacy right to erase public records is misguided. No such right exists.

A further concern about the right to be forgotten is that search engines are left to police the scope of its application. This is particularly troubling in the case of news articles.

It is illogical and likely unconstitutional in Canada to burden search engines with the task of determining whether access to their news stories remains in the public interest. If a news article is ever to be deleted from the public record, the publisher should be making that determination.

News media create the historical record. As a rule, articles in the news media are unpublished very rarely and only after careful consideration by editors. This editorial function should not be usurped by search engines enforcing an ill-defined right.

There is also no need for a right to be forgotten to be applied to search engines because content on the internet is already highly regulated. Criminal laws protect against content such as hate speech or child pornography; defamation laws protect against reputational harm; privacy laws protect against privacy violations, and copyright and trademark laws protect intellectual property rights. These laws have developed over centuries and are carefully tailored to balance the interests at play in each case.

Rather than a broad right to be forgotten, what is required is careful consideration of the necessarily rare circumstances in which it is desirable to de-index lawful online information. This debate should take place in the legislature and it should result in a list of carefully defined circumstances where content can be de-indexed on request.

The alternative, the creation of a broad right to be forgotten to be policed by search engines, is a recipe for abuse. It will result, as it has in Europe, in efforts to distort the historical record at the expense of constitutionally protected media rights and of the public’s right to know.

In an era when increasing efforts to distort the public record are well documented, the creation of a right to be forgotten is a big step in the wrong direction.

Now, more than ever, every effort should be made to ensure that an accurate historical record is preserved.