Privacy vs. Free speech on the Internet: An update on the right to be forgotten and what is happening at home

As first published in BarTalk, August edition. On February 24, 2017 Netherland’s highest Court (ECLI:NL:HR:2017:316) found that Peter de Vries – who was brought into the spotlight five years ago when an undercover video of him soliciting a hit on a rival pimp went viral and resulted in him being convicted for that attempt – had a “right to be forgotten”. Google’s argument that it was in the public interest for people to know about de Vries’ criminal activities failed.

How did this happen? Three years ago the European Union’s Court of Justice in Google Spain v. AEPD, Marcio Osteja Gonzalez, C-131/12, ECLI:EU:C:2014:317 established what has become known as the “right to be forgotten.” Since then, European Union subjects can demand that Google and other search engines remove from their search results any links to otherwise lawful publications on the basis that the publication contains information which is “inaccurate”, “inadequate, irrelevant or excessive,” or “not kept up to date.”  As of yet, there is no similar right in Canada.

The landmark Google Spain case founded the right upon the European Union’s data protection legislation, Directive 1995/46/EC (the “Directive”).  The explicit objective of the Directive is to ensure that the processing of personal data protects one’s fundamental right to privacy.  Article 12 of the Directive provides a person with the right to compel a “controller” to rectify, erase or block data which does not comply with the Directive, including because it is incomplete or inaccurate.

The Court in Google Spain not only found Google to be a controller of data under the Directive, but the controller of one’s internet “profile” and thus having a more profound impact than any other publisher due to the search engine’s ability to make information which would otherwise be difficult to find readily available.

In response to the right to be forgotten Google has, as of June 16, 2017, received 734,289 delisting requests from European Union subjects[i]. Google accepts on average approximately 43% of the requests submitted[ii].  Google’s delisting policy merely identifies broad and subjective criteria.[iii]  A committee of the House of Lords has described the right as “misguided in principle” and “unworkable in practice”.[iv]

All eyes are now turned to France where its highest court will soon be considering whether it was sufficient for Google to make infringing content inaccessible from all its European Union domains as well as block the links in the search results available to Europeans using non-European domains, such as google.com.[v] The French Data Protection Agency, responsible for enforcing the Directive, has taken the position that this is not enough, and that the links have to be made unavailable world-wide. According to the last count, there are 29 intervenors from around the world involved.

Meanwhile…. in Canada

The idea that a European Union subject, including Peter de Vries, could have so much control over his or her internet profile may be astonishing to Canadians.

In Canada, individuals concerned about their online profile often seek remedies in defamation rather than privacy. Interlocutory injunctions to remove defamatory publications are difficult to obtain.  Consider Niemela v. Malamas, 2015 BCSC 1024 where a Vancouver lawyer was unsuccessful in obtaining an injunction against Google to remove links to publications concerning his conduct as a lawyer.  As the courts do in Canada, the standard test for an injunction was not applied but rather the test applicable in a defamation context, namely whether the words are so manifestly defamatory and not defendable that any jury verdict to the contrary would be considered perverse.[vi]  In addition to dismissing the injunction application, the Court allowed Google’s cross-application to dismiss Niemela’s claim that Google was liable as a publisher of the snippets and for hyperlinking. Google was found to be a passive instrument, akin to a library catalogue.

The closest our courts have come to date to use privacy legislation to force a search engine to de-list websites was a declaration by the Federal Court in A.T. v. Globe24h.com, 2017 FC 114 that certain websites infringed federal privacy legislation, with the expressed hope that the declaration would be used by the complainant to “persuade” Google to de-list the infringing website.

The respondents in A.T. v. Globe24h.com hosted a server in Romania that republished Canadian court and tribunal decisions from CanLII.org and indexed them in searchable form so that decisions concerning personal matters would be readily obtainable. If an individual wanted to remove such search results, he or she could request from the respondents a free but snail-paced removal service or pay a fee to expedite the removal. These activities were found to infringe the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”), and not for the first time, PIPEDA was applied to a foreign organization who engaged in activities in Canada.  Relying on Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265which has now been upheld by the Supreme Court of Canada, 2017 SCC 34  – the Federal Court noted that the fact that its order may affect activities in other jurisdictions was no  bar to making the Order.

The Equustek decision is not a privacy or defamation case but can play an important part in Canada maintaining jurisdiction over the internet speech v. privacy debate.  Equustek is an intellectual property case.  The defendants had, inter alia, used Equustek’s trade secrets to manufacture a competing product which they sold on the internet.  Plaintiff’s counsel obtained a series of interlocutory injunctions against defendants, including orders that the defendants not conduct business on the internet, but the defendants circumvented the orders, left the jurisdiction, and continued to profit from global internet sales from unknown locations.   Equustek’s counsel then obtained an injunction against Google – not a party – requiring it to globally de-list the websites.  The majority of the Supreme Court of Canada recognized, when upholding the injunction, that the only way to ensure that the injunction attained its objective was to have it apply where Google operates – globally.  The Court noted that there were no identifiable countervailing comity or freedom of expression concerns in upholding the order.

Concluding remarks: Asserting jurisdiction in Douez v. Facebook, Inc. 2017 SCC 33

The sharp contrast between how courts in the European Union and our own courts have handled Google can be explained, in my view, by the greater importance that Canadian jurisprudence places on freedom of speech over privacy.  Canadian courts should be careful not to lose jurisdiction over the balancing of these competing rights on the Internet.

Last week the majority of the Supreme Court of Canada in Douez v. Facebook, Inc., 2017 SCC 33 declined to uphold a forum selection and choice of laws clause contained in Facebook’s Terms of Use in a case where the plaintiff was relying on British Columbia’s statutory breach of privacy.  The majority agreed that local courts “may be more sensitive to the social and cultural context and background relevant to privacy interests of British Columbians.” Three Justices dissented, finding among other things that the British Columbia Privacy Act does not require special local expertise.

The balancing of speech v. privacy on the internet and jurisdictional dance shall continue.

[i] https://www.google.com/transparencyreport/removals/europeprivacy/

[ii] ibid

[iii]http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp225_en.pdf

[iv] https://www.publications.parliament.uk/pa/ld201415/ldselect/ldeucom/40/40.pdf

[v] https://www.cnil.fr/fr/node/15790

[vi] Google before the injunction hearing did voluntarily de-list various websites.