Privacy Commissioner Addresses the Need to Protect Reputation in an Online World

In January 2018, the Office of the Privacy Commissioner of Canada (OPC) released a report stressing the need for Canadians to be better equipped to protect their online reputations.

After setting “Reputation and Privacy” as one of its strategic privacy priorities for 2015-2020, the OPC undertook a consultation and call for essays on the issue of online reputation in January 2016. After a consultation process with twenty-eight stakeholders and members of the Canadian public, the OPC found growing concerns among the Canadian population about risks to online reputation, and the lack of control to protect oneself from these reputational risks.

The OPC’s draft position makes clear that Canadians should have better tools to help protect themselves from online reputational harms. Privacy Commissioner Daniel Therrien has said that “Ultimately, the objective is to create an environment where people can use the Internet to explore and develop without fear their digital traces will lead to unfair treatment.”[1] In order to achieve this objective, the OPC is highlighting existing federal privacy law, and proposing other innovative solutions.

New measures include the right to ask search engines to de-index web-pages that contain inaccurate information; removal or amendment of information at the source; and education to help develop informed online citizens.[2] While de-indexing removes a webpage or image from search engine results, source takedown involves removing the information from the Internet.[3]

De-indexing and source takedown may provide effective remedies for certain privacy harms, and can help ensure fundamental Canadian values such as privacy, dignity and autonomy. However, neither is without challenges. Source takedown especially might present a challenge with respect to freedom of expression.

Both de-indexing and source takedown are reminiscent of the Right to Erasure (Right to be Forgotten) in Europe, but the OPC maintains that it is seeking to interpret current Canadian legislation rather than import the European framework. The Privacy Commissioner has said that Principles 4.6, 4.9, and 4.9.5 in the federal Personal Information Protection and Electronic Documents Act (PIPEDA) especially provide for the right to remove links from search results without deleting the content itself, under certain circumstances and upon request. These principles highlight the requirement for organizations to collect, use and disclose information that is accurate, complete and up-to-date, as well as provide individuals with the ability to challenge the accuracy and completeness of his or her personal information. Still, Therrien has pointed out that the legislation does not explicitly reference the right to de-indexing or the right to reputation, and hopes that Parliament will resolve the potential for confusion that this may cause.[4]

Legislative ambiguities in this field can have troubling consequences in a number of circumstances. For example, a person may want to de-index or takedown defamatory content on a blog post, intimate photos, or online information about sensitive information relating to religion or health but may not have the explicit right to. The OPC’s proposals do not address these ambiguities, but seek to provide mechanisms for individuals to pursue Principles 4.6, 4.9, and 4.95 and amend their online information. The OPC proposes that such challenges should be evaluated on a case-by-case basis. Further, the OPC stresses that the decision to remove links should take into account freedom of expression and the public’s ability to access information.[5]

While the OPC recognizes the need to address de-indexing, it recommends that Parliament conduct a study of the issue in order to determine the correct balance between individual privacy and freedom of expression in society. The OPC explained that “while privacy interests may point in favour of allowing individuals to control the presence or accessibility of personal information, there will be in some cases a countervailing interest in ensuring that that information remains widely available.”[6]

Beyond de-indexing and source takedown, the report also emphasizes the need for privacy education. The OPC aspires to a rights-based privacy education program to educate young Canadians on the mechanisms to control reputations, as well as consider the impacts of one’s actions on others.

The OPC has said that it will seek stakeholder views and public opinion on the proposals outline in its draft report before finalizing its position, and developing an action plan to put the new measures into practice.