Jordan: We are quickly approaching a point in human history where there will be more people who have something embarrassing or humiliating in their Google search results, then people who do not all right. That’s an estimate. But what is a fact is that putting someone’s name into a search engine is by far the most common way to find out more about them. So people who have dumb youthful indiscretions in their past people who have criminal charges for which they’ve since paid their debt to society or even people who were past. Of cyberbullying that has somehow stuck around the top of their results in Canada. Those people are mostly out of luck. But not everywhere the European Union for instance has legislation, but offers them a chance to request that those results disappear. It’s called the right to be forgotten but who gets to exercise that right and who decides if a piece of information is suitable to remain on Google or not. In Canada, what options do we currently have for delisting the worst stuff that exists About Us online and should we even be allowed to do that? I’m Jordan Heath Rawlings, and this is the big story Michael Geist is a law professor at the University of Ottawa and he specializes in among other things online privacy issues. Hi Michael.
Michael Geist: Hi.
Jordan: Thanks for joining us today.
Michael Geist: I’m really happy to do it.
Jordan: Perfect. Well, can you define for all of us? First of all, just what the right to be forgotten online means.
Michael Geist: Sure. So, I mean, I think the starting point for the right to be forgotten is the notion that there may be content online that we would like to have forgotten or to be forgotten that it may be truthful. It may be accurate, but it can be embarrassing it can be even more than embarrassing it can cause real harm to our reputation but it’s difficult to remove it because there’s nothing inaccurate about it. There’s nothing unlawful about it. And in fact by and large it’s often would rest undiscovered but for search. Students that make it easier to find content in a sense the internet never forgets in part because of search engines and so the idea behind the right to be forgotten is this right that people have to ask that information be removed largely from search engine indexes, so that the information May remain online, but will be very difficult for others to find.
Jordan: And when we talk about a right to be forgotten we’re and we’re not are we talking about a legal right? Like can people actually do this and where it’s enforceable?
Michael Geist: So the the place that gets the most amount of attention of the jurisdiction that gets the most amount of tension around this issue is is within the European Union and many of your listeners may know that that Europe has adopted fairly forward-looking privacy regulations. They refer to them often as data protection rules, and they go beyond what’s found in many other jurisdictions and all of this kind of arose out of a case a number of years ago where someone in Spain. Had a newspaper article that had been posted many years earlier. Involving some legal issues. He found it through Google. He wanted to have it removed. He asked Google to remove it because as I say was difficult to actually remove the underlying content Google said no the case went up through the European courts and ultimately the court interpreted existing European law to allow for the. The allow for Europeans to ask for content to be removed from search indexes. And so Google proceeded to abide by the ruling and set up a structure. Whereby people can ask for certain search results to be removed in a sense have certain information removed from the index itself.
Jordan: So how does that work in practice? Obviously, they don’t have to remove it. So presumably there’s a person or a a jury almost there somewhere deciding whether or not I guess this is embarrassing enough for long enough in the past to Warrant. No longer be in the first thing that pops up when someone Google’s you.
Michael Geist: Right, they’ve adapted or adopted rather a fairly detailed prescribed system to deal with this and some would argue. They do have to remove content at least content that falls within the strict structure of the law from their index. So the way that they do it is that there is an online form that people can fill out they can identify the URL or the web address where the content is located provide. The reason that they believe that it ought to be removed and they’ve got essentially a triage system in. Place, whereby they get a first round of review. Someone will take a look at this decide whether or not they agree with the claim that’s being made by the individual. Sometimes they remove the content. Sometimes they take a look at this and say now I don’t think that this really qualifies and other times they say this is a pretty challenging issue. It’s not totally clear cut their arguments on both sides and so in a sense the URL or the claim gets escalated to others who may be asked to conduct their. On reviewing the this these issues can get slowly escalated within the company until ultimately there’s a final decision maker who can make the call whether it stays in or out depending on that decision. If it go if the company says no, we’re not removing it then it’s open to the individual to file a complaint with their data protection commissioner arguing that Google is not in compliance with their obligations to the right to be forgotten.
Jordan: Do we have any idea since this process was put in place how popular it’s been and what people are using it for because I feel like there’s such a wide spectrum of things people might really want to be forgotten online.
Michael Geist: We do and Google has some numbers that are out there. We are talking about hundreds of thousands of URLs that have been removed from their index since this was put in to Place several years ago. So we are talking about something that’s pretty widely used now and when you. Two people at Google they’ll tell you that there really are these kind of three buckets of cases. There are those that are no-brainers in the sense that yes, it clearly ought to be removed. It’s causing harm. They can see why it would cause harm. The information itself may be accurate took place years ago. But for whatever reason it ought to be removed now, then there are those that they say well no, we’re simply not going to remove it a competitor doesn’t like something that someone else is saying about them and they say sorry that’s not good enough and we’re not going to remove that and then there are the really hard cases where there may be public value in continuing to have access to this information. There may be some amount of harm. And I think troublingly to to a lot of people we ultimately then put the decision in the hands of a large intermediary like Google that has to weigh these competing views and ultimately make a call and so by having a system that largely takes this out of the hands of kind of entities that we would traditionally look to to conduct these reviews. For example, a court were vesting actually a considerable amount of power in company like in a company like Google.
Jordan: And we’re going to get to how that applies or doesn’t apply in Canada in a minute. But I guess my obvious question then is how does Google feel about that being the sort of judge jury and executioner on these things?
Michael Geist: Well, they certainly oppose the case or the the case the case is it proceeded through the European court, but once they were left with no alternative but to comply with the law, they they obviously did so they have been continued to they have continued to engage in. Cases that they prescribe or circumscribe I suppose some of the limits of the of the law. So for example, there was a recent case out of Europe that raised the question as to whether or not the removal of the results from the search index should be limited just to people within Europe or was Google obligated to remove from the search index the results on a global basis. And so and so Google unsurprisingly argued if we’ve got to comply with the. The compliance ought to be limited to the European borders the idea that somehow Europe decides for the rest of the world what comes in or out of a search index seems inappropriate and a European Court actually agreed with them. They said you’re right the way the law is constructed right now. The it the limits are at the within Europe. Although it’s open to a specific country individual country to say we’d like to see it extended further and then they could take up a review of that kind of law in the future.
Jordan: I don’t even think that many people have an idea that Google results can be so different country to Country.
Michael Geist: Yeah, they can and it’s actually came up in a Canadian case a couple of years ago case known as Equus Tech where a British Columbia Court issued a essentially a takedown or removal from the search index. It was coming out of an intellectual property dispute and the question that ultimately went to the Supreme Court of Canada. Was whether or not a Canadian court order could require a company like Google to remove search results. Not just for those accessing it in Canada, but those doing so on a global basis and interestingly the Canadian Supreme Court ruled in that case that they could issue an order that would be applicable on a global basis. So we’re starting to see some differences of opinion in a sense between High courts around the world about how far their rules their orders ought to extend. But from the perspective of a company like Google they do have the ability to to limit search results. It may not be 100% Perfect. But you know Canadian seeking to access Google typically will find themselves at the google.ca site. The results that they get are going to be tailored somewhat for Canadian audience. And so they are going to reflect what Canadians typically may want to see or based on their algorithm May obtain somewhat different results than someone say in Europe or the United States or as has attracted a lot of attention someone trying to access the search engine from China.
Jordan: I guess that brings us to Canada and I understand that it doesn’t follow the exact same framework as the European Union. But where does the right to be forgotten standing Canada? Do we have any legislation that covers it or offers? An opportunity for someone to make a request.
Michael Geist: I think the the answer depends on who you ask interested. I would say that before the European decision came out. I would say that that most would have concluded that Canadian Privacy Law in the way in the way. It is currently structured does not include a right to be forgotten. There’s certainly nothing specific about a right to be forgotten. Within our privacy rules they date back to the late 1990s is when our private-sector privacy rules were first introduced and they took effect in the early 2000s. There’s nothing directly on point that deals with the right to be forgotten but. In recent years the Privacy Commissioner of Canada has sought to interpret the law to say that he thinks that there is a right to be forgotten or at least that he can interpret that there exists a right to be forgotten within the law not everyone agrees and it is currently before the courts who are starting the process of sorting through whether in fact you can interpret existing law to include one of these rights the one of the right to be forgotten, although I think some who look at the Canadian privacy laws space expect that we will review and update our laws. Probably well before this particular piece of litigation kind of winds its way through the Canadian court system
Jordan: is the right to be forgotten popular idea in Canada, and I guess if it is why haven’t we heard a lot about it from federal politicians, especially now?
Michael Geist: Well, I don’t know if it’s a popular idea or not. I mean, I don’t know that we’ve seen a lot of survey data that would indicate whether or not it’s popular now, we’re certainly in the midst of a time when there’s a lot of people speaking out against some of the large tech companies something that that seeks to regulate or regulate some of those companies may have some amount of popularity depending I suppose on who you talk to. I suppose the reason that we haven’t seen politicians move forward with this I think has less to do with whether or not it’s a popular idea or not. I mean, I think that we’re still in early stages to identify whether it is or not and to educate Canadians about this particular issue and more about how slow privacy reform has has has has proceeded in Canada. So that the liberal government did produce digital Charter what they call a digital Charter to. The end of their mandate that does talked about reform to Canadian Privacy Law, including these kinds of reforms, but it came fairly late in the Mandate. And so there’s been no legislation that’s been introduced. I think that we’ve got all the political parties talking about privacy reform. I think in light of the Facebook and Cambridge analytic it case these issues right a lot more attention. And so they’re right. There is an openness to reform its become a bit more of a legislative priority, but it’s fair to say it was not a big price. Ready for many years under the liberal government. It certainly wasn’t under the conservative government before them. So we basically had a law that was introduced more than two decades ago, which can be adapted through interpretation, but it would hardly be described as best of breed or modern in light of some of the things that we’ve seen take place in some of the laws passed elsewhere and so reforms I think in the view of many are now long overdue,
Jordan: As someone who deals with this stuff every day. What do you see as the future for this kind of legislation? Do you believe will have something specific governing this rather than trying to interpret old laws within the next little while.
Michael Geist: Well, I’m certainly an optimist that we’re going to see privacy reform in Canada. I do think this issue is has kind of moved up and we’ve reached the point where whoever forms government will I think seize on this is a way to address what is mounting public concern and I think a recognition that there is a need for update at the same time. There is also the a sort of a political trade reality that Europe has updated their laws and they’ve long had in place a system known as adequacy, whereby they can restrict the ability to transfer data across borders only to those countries that meet us a certain standard. They’ve the standard being that they’ve got an adequate level. Of privacy and data protection safeguards Europe says for itself, whether or not a country meets that adequacy standard Canada received an adequacy finding in effect many years ago when it first passed its law but given the amount of change that we’ve seen in the world around privacy and specifically in Europe as Europe reviews the Canadian adequacy finding even more than the Canadian public saying they want to see changes if Europe says we may withdraw the adequacy finding for Canada and thereby put at risk a lot of those data transfers between Canada and European member states that may provide I think even the strongest impetus for whoever forms government to re-examine Canadian Privacy Law and updated for 2019 2020
Jordan: On a practical level given that Canada doesn’t have a process in place for this right now. What do people who find themselves with our URL really high in their Google rankings that could cause them a lot of problems typically do.
Michael Geist: Right. Well, let’s start by noting that the starting point for many would be to see whether or not they can get the content removed at source, which is really the issue at the end of the day. This is trying to obscure the information as opposed to have it removed altogether. So probably the starting point is to say well, how can I find a way to get this content removed from the original Source if they’re unsuccessful in that regard there are Services out there and people that that work to change. What comes out as part of a Google search results? So in a sense try to move it further down the rankings since we know from many studies that most people don’t go beyond the first set of results that they get from a search engine. And so if they can find ways to have other information about themselves become more prominent in those search results the information still may exist in the search result, but fewer people may see that link and decide to click on.
Jordan: Is there a slippery slope argument to be made when we’re talking about this in general in terms of letting third parties and not the courts determine what is seen About Us online? I mean, somebody could have a an interest that concerns Google and they could decide not to deal it D Index at for that reason, right? I mean. I just I try to Grapple with all the possible requests from this and it seems massive.
Michael Geist: It does. I think there are a lot of problems with right to be forgotten or the right to the index. I think from a Canadian perspective. I think we ought to recognize first and foremost that we have a different constitutional structure than those European member states and once you layer in the Charter of Rights and Freedoms and rights to access information in. Protections for freedom of expression the notion that somehow we can simply remove access to this information and have something that remains Charter compliance I think is a challenge now that’s not to say that a that a court might not uphold a provision that is well crafted that addresses some of the safeguards that might be necessary on these issues. But the Canada is not Europe and it is not by any means clear that we can simply import the same rules that they have in Europe. Still be compliant with some of our fundamental laws around the Charter of Rights and Freedoms even beyond that. There is I think an open question as to whether or not this is a good idea. I think that access to information is critically important and the notion that someone can in a sense rewrite history by making this information very difficult to find information that that is as we’ve been saying is accurate. There’s nothing unlawful about it. I think raises some. Legitimate concerns
Jordan: it’s funny because when I think about this I come at it from like two perspectives on the one hand. I totally understand just as a private citizen having something about you online. That’s really embarrassing or humiliating or would hurt your business or career prospects and wanting it removed on the other. As a journalist. I rely on looking that stuff up exactly that stuff to find out stuff about people.
Michael Geist: Oh, absolutely. I think these issues broadly speaking certainly about this, but even more broadly about the role that large intermediaries like search engines social media companies play with respect to access to content are incredibly challenging far more so than I think sometimes you get your it’s part of public popular discussion. I swear it’s simply like well, we should require these companies to do more they ought to take responsibility for the content on their system. But by requiring some of these same large companies that were already have some amount of concerns with about the kind of power that they’re able to exercise around information putting it on their lap to make these kinds of decisions weather around the right to be forgotten or around even more broadly content moderation what comes up what comes down in effect makes these companies even more powerful and bye. Doing so without more traditional due process and Court oversight. I think that raises a lot of real problems and real concerns that in many ways these kind of weighing these. Policy goals and sometimes these legal obligations are really best left to courts that are better position to engage in that kind of analysis the challenge then becomes how do you scale to a point? That’s fast enough and large enough to address both the massive volume and the need to respond quickly to some of these concerns in a court system. That isn’t known for handling. Things particularly quickly nor is it well positioned to deal with the large volume that we’re thinking.
Jordan: I usually on these things by asking the expert where you think will be on this in five years but feels like this is changing too fast to even go there. Is that right?
Michael Geist: Yeah. I don’t know that we’ve got a good sense of where we’re going to be adding in five years. We don’t have a good sense. We’re going to be where we’re going to be out in five weeks given that we’re midst of an election campaign and we’ve got political parties in Canada taking different positions on these issues. I think the one thing that we do not. Is that these issues aren’t going away that we are going to have to Grapple with them in some fashion that the harms that people identify as part of the right to be forgotten the right to D. Index are real but so too are the concerns about. Not allowing large companies to rewrite history not removing lawful content and ensuring that we’ve got full robust protections around freedom of expression and freedom of access to information
Jordan: Michael thanks for your time today.
Michael Geist: Oh, it’s my pleasure. Thanks so much for having me.
Jordan: Michael Geist a law professor at the University of Ottawa specializing in online privacy. That was the big story. If you want more from us head to thebigstorypodcast.ca. If you want us to hear more from you at to our Twitter account at @thebigstoryfpn, you can find us in all our brother and sister shows at frequencypodcastnetwork.com. We keep adding new ones. So go take a look. You will find something you like and you can write us and review us wherever you get. That’ll be Apple or Google or Stitcher or Spotify or Dinopod. Thanks for listening. I’m Jordan Heath Rawlings. We’ll talk tomorrow.
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